3M CORP: Faces Second Water Contamination Class Action------------------------------------------------------Ted Skroback, writing for KOAA, reports that the class actionlawsuit being filed over groundwater contamination in theFountain/Security/Widefield area is going after manufacturers ofthe fire retardant used by the air force that seeped into theground water supply leaving behind accelerated levels of cancercausing PFC's.

McDivitt Law is teaming up with a law firm from New York thatspecializes in environmental class action lawsuits. They are intown meeting with clients of the lawsuit against manufacturingcompanies who they say should pay victims for high amounts ofPFC's found in the Fountain/ Security/Widefield water supply.

"I said we need to have some heavy hitters to help us out, this isa, this is a big case because there's a lot of people involved andthe people on the other side we feel should be held accountablehave more money than God," said Mike McDivitt.

There are six manufacturing companies named in the lawsuit, but nomention or intention of going after the Air Force that used thefoam as a fire retardant.

"They've produced no documents to show that they've notified theend user of the appropriate way to use this," said Paul Napoli ofNapoli Shkolnik PLLC from New York, "so to be careful that if youput it on the ground it's somehow going to end up in the water."

The law offices also think the government should pay to getresidents in the affected area blood tested, they say up to 70,000thousand people could be affected.

"If you get a blood test for $700, if you multiply that timeseverybody that needs to be blood tested that's a very expensiveproposition. We think it's a community health problem, we thinkit's a public health problem," said Mr. McDivitt.

The lawsuit started with over 1,000 signatures and is now over1,500.

"These companies have the obligation if they're going to sell theproduct to warn appropriately, let every end user know how to useit safely and whether or not you can affect the surroundingenvironment," said Hunter Shkolnik.

There's a second class action suit filed by a Denver law firm, acourt could find that it's best the two lawsuits merge.

AIR CANADA: Parallel Class Proceedings Issue Arises in McKay Case-----------------------------------------------------------------Patrick Williams, Esq. -- pwilliams@mccarthy.ca -- of McCarthyTetrault LLP, in an article for Lexology, reports that McKay isone of three potential class actions brought in B.C., Ontario, andQuebec respectively, arising from cargo fees charged by certainairlines. Counsel for the proposed class representative in eachaction worked co-operatively and focused on the Ontario action,which was certified in Airia Brands v. Air Canada, 2015 ONSC 5352.The Ontario Superior Court subsequently approved a distributionprotocol respecting settlement funds. Counsel for the proposedclass representative in McKay then sought the B.C. Supreme Court'sapproval of a similar distribution order.

The application was heard by Chief Justice Hinkson, who began hisreasons for judgment with a review of Canada's national classactions regime -- or lack thereof. Chief Justice Hinkson foundthat the existence of three parallel actions in B.C., Ontario, andQuebec merely duplicated each other, occupied the time of threecourts, and created additional expenses for parties forced tolitigate in different provinces.

However, Hinkson C.J. found that despite the absence of nationalclass action legislation, courts in various provinces hadpermitted the pursuit of what are effectively national classactions, and had also deferred to class proceedings in otherprovinces. Hinkson C.J. held that deference should be encouraged,as it would prove more efficient than parallel proceedings.

Yet the problem of multiplicitous class actions remains. Forexample, In McKay, all of the members of the proposed butuncertified B.C. class, were also members of the Ontario class inAiria Brands. With reference to Kowalyshyn v. ValeantPharmaceuticals International, Inc., 2016 ONSC 3819, Hinkson C.J.identified at least six problems, in the context of classproceedings, in attempting to avoid a multiplicity of proceedings:

1. the right of a putative class member to opt-out of the classproceeding;

2. the influence and importance of class size and class memberloyalty;

3. law firms prospecting for a quick profit from class actionwork, which start multiple class actions or redundant classactions in order to get a piece of the class-action-action;

4. what Perell J. [who decided Kowalyshyn] described as thedouble dealing of defendants;

5. the absence in Canada, which is a confederation ofprovinces, of any mechanism as exists in the United States, whichis a union of states, to consolidate proceedings that areinitiated in several different jurisdictions; and

6. the rarity of purely local class actions and the prevalenceof parallel regional, national, or global class actions that aredifficult to cull.

Turning to the merits of the application -- and perhaps to makethe point that McKay was an unnecessary duplication of AiriaBrands in Ontario -- Hinkson C.J. simply quoted the portions ofthe Ontario judgment approving the settlement distribution that heconsidered germane to the application in McKay. Chief JusticeHinkson also held that there was no need for the B.C. SupremeCourt to oversee the distribution process because the OntarioSuperior Court would do so and because allowing it to do so wouldbe a more efficient use of judicial resources.

One solution to at least partially reduce the impact of parallelclass proceedings may be to have judges from different provinceshear applications like the one at issue in McKay concurrently.That approach was approved in Endean v. Canadian Red Cross, 2013BCSC 1074, where the Court held that it was appropriate to hear anapplication in a parallel class action at a location outside B.C.alongside supervisory judges from the parallel actions in otherprovinces. However, the Court of Appeal reversed that decision(2014 BCCA 61) and held that a B.C. judge cannot conduct a hearingoutside B.C., but could preside over a hearing that took place inB.C. via telephone or video conference. Conversely, the OntarioCourt of Appeal held that an Ontario judge could conduct a hearingoutside Ontario (Parsons v. Ontario, 2015 ONCA 158).

The Supreme Court of Canada heard appeals from Endean and Parsonson May 19, 2016. The Court may use the cases to address the issueof parallel class proceedings. However, unless and until theCourt or the provincial legislatures engage in much-needed reform,class action counsel and litigants will continue to incur the costof the inefficiencies identified by Hinkson C.J. and others.

In her Opinion dated October 4, 2016 available athttps://is.gd/mUqF4w from Leagle.com, Judge Moore granted thepetition for writ of mandate as to the portion of the SuperiorCourt's order dismissing the class claims to allow the arbitratorto decide whether the arbitration clause permits arbitration on aclass-wide basis because the "the mere inclusion of the words 'Iagree' by one party in an otherwise mutual arbitration provisiondestroys the bilateral nature of the agreement." The Court rejectsPlaintiff's contention on the payment of arbitration fees becauseit lacks merit. The cause is remanded to the trial court forfurther proceedings consistent with the opinion.

Defendant manufactures surgical products and sells or distributesthem nationwide. After plaintiff completed a job application,defendant hired him to work in the production line of its surgicalproducts. In 2014, plaintiff brought a putative class actionagainst defendant, asserting causes of action under the LaborCode, the Unlawful Competition Law, and Private Attorney GeneralAct (PAGA). The action sought unpaid overtime, meal and restperiod compensation, penalties, plus injunctive and otherequitable relief.

Counsel for both parties met on multiple occasions to discuss apotential stipulation to submit the claims to arbitration and staythe PAGA cause of action. Defendant moved to compel arbitration ofthe individual claims, strike the class allegations, and stay thePAGA cause of action. Plaintiff opposed the motion. Defendantoffered to pay for the costs of arbitration, including theinitiation fees and compensation for the arbitrator, effectivelyagreeing to strike the cost splitting provision.

The trial court granted Defendant's motion, ordering plaintiff'sindividual claims to arbitration, striking or dismissing the classaction allegations with prejudice, and directed Defendant to "payall costs of the arbitration other than those that plaintiff wouldnecessarily pay in a court proceeding." In doing so, it foundthat: (1) the contract was still a contract even if it may be oneof adhesion because plaintiff was required to sign it in order toobtain employment; (2) plaintiff was not credible in claiming hewas "not fluent in speaking or reading English," as he states inhis application "he has English as a special skill or talent,checked the appropriate boxes on the application which requiresuch an understanding, and is a civil engineer trained inAustralia"; (3) the failure to attach or provide the AAA rules"may make the application procedurally unconscionable" but not"substantially oppressive as it would seem unlikely that a civilengineer, with six years of college, could not traverse theinternet to find such rules and, even if the application isprocedurally unconscionable, it is not substantivelyunconscionable"; (4) the costs provision was "easily severable"and did "not permeate the application with substantiveunconscionablity"; and (5) nothing in the arbitration provisionindicated "class actions or representative claims were included"and the words used did not relate or arise out of other employees'employment.

On appeal, plaintiff asserts the court erred in finding thearbitration clause was not unconscionable, severing the costprovision, and dismissing the class claims with prejudice.Plaintiff argues the arbitration clause is substantivelyunconscionable because it lacks mutuality, requires him to payarbitration fees, gives defendant a "free peek" at his claims, andfails to satisfy the requirements of Armendariz v. FoundationHealth Psychcare Services, Inc. Plaintiff asserts the arbitrationprovision is substantively unconscionable because it requires himto pay half the costs of the arbitration without considering hisability to do so and misinforms him he had to pay all his ownattorney fees.

ATLANTIC RICHFIELD: West Calumet Residents File Class Action------------------------------------------------------------Craig Lyons, writing for Chicago Tribune, reports that residentsof the West Calumet Housing Complex in East Chicago want theoperators of two former lead factories to pay for theirrelocation.

A class action lawsuit filed on Oct. 6 by LeRithea Rolan andLamottca Brooks, on behalf of the residents of the housingcomplex, charged that Atlantic Richfield Company, DuPont and theChemours Company should be responsible for the costs incurred byresidents as they've been forced from their homes because of thelead and arsenic the now-demolished factories left in the ground.

". . . News of the lead and arsenic contamination in East Chicagohas thrown the neighborhood into disarray, while ARCO and DuPontare long gone from the area," said attorney Thomas Zimmerman, whois representing the plaintiffs, in a statement. "The pollutersmust take responsibility and pay for the damages they havecaused."

The lawsuit wants the court to hold the companies responsible forthe anguish the contamination has caused residents of the WestCalumet Housing Complex.

"Everybody's lives have been disrupted tremendously from this,"Zimmerman said.

When the EPA tested the levels of lead and arsenic in the soil atthe West Calumet Housing Complex, the results showed every streetin the complex had high levels of contamination.

The testing of Ms. Rolan's yard recorded lead levels that rangedfrom 1,852 to 29,000 parts per million. The testing inMs. Brooks' yard found lead levels from 6,900 to 91,100 ppm.

"None of the residents knew about the polluted soil when theymoved there," Mr. Zimmerman said.

Ms. Brooks sent her children to live with relatives after learningabout the lead and arsenic levels in the soil, Mr. Zimmerman said.

"She's afraid for their health," he said.

Shortly after moving into the complex with her family in 2012, Mr.Zimmerman said Brooks began to notice behavioral problems anddifficulty concentrating with her children. Physicians wereunable to figure out the root cause, Mr. Zimmerman said, but didnot yet know about the lead levels in the soil.

"Now that that has been made known, it all makes sense,"Mr. Zimmerman said.

Ms. Brooks and the other residents of the complex are now forcedto move and uproot their lives in a short amount of time,Mr. Zimmerman said, and many residents are having difficultyfinding a new place to live.

The residents are of limited means, Mr. Zimmerman said, and mostdon't have the money to pay for all the relocation costs.

"We're seeking some compensation from the polluters to helpprovide some assistance," Mr. Zimmerman said.

Aside from the issue of relocation costs, Mr. Zimmerman said thecontamination at the site put a burden on the residents of thecomplex and made it impossible for the residents to enjoy theirhomes and the properties around them.

In the middle of the summer, children were not able to playoutside because of parents' concern for their health and safety.Residents kept their windows closed, many didn't have airconditioning. If children went outside, parents made the kidsremove their clothes at the door and washed off any dirt.

"It was very difficult on the residents and especially thechildren," Mr. Zimmerman said.

The costs being sought in the class action suit builds on the workdone by the EPA to hold the companies responsible for clean upcosts, Mr. Zimmerman said.

In 2014, the U.S. District Court for Northern Indiana approved aconsent decree between the EPA, Department of Justice, State ofIndiana, the Atlantic Richfield Company and E.I. du Pont DeNemours regarding the cleanup of the U.S. Smelter and LeadRefinery site. The agreement covered only zones one and three ofthe site.

Based on the agreement, the two companies would cover roughly $26million in cleanup costs, according to the EPA.

"That however does not compensate the people who are living therefor the aggravating and inconvenience they are experiencing,"Zimmerman said.

Mr. Zimmerman said the Comprehensive Environmental ResponseCompensation and Liability Act not only provides the EPA themechanism to seek costs for cleanup but also compensation foraffected residents. That was not part of the consent decree, hesaid.

AXIALL CORPORATION: "Bohrer" Suit Moved to N.D.W.Va.----------------------------------------------------The class action lawsuit titled Tim Bohrer, Ronda Bohrer, RoyYoho, and Darlene Yoho individually and on behalf of a class ofpersons similarly situated, the Plaintiffs, v. Axiall Corporation,the Defendant, Case No. 16-C-158, was removed from the CircuitCourt of Marshall County, to the U.S. District Court for theNorthern District of West Virginia (Wheeling). The District CourtClerk assigned Case No. 5:16-cv-00156-FPS to the proceeding. Thecase is assigned to Hon. Senior Judge Frederick P. Stamp, Jr.

Axiall Corporation has historically been a major manufacturer andmarketer of chlorovinyls and aromatics.

Defendant, Mayor and City Council for Baltimore, is a charteredMunicipal Corporation under Maryland Code Annotated Articles 23Aand 23B, and is responsible for the operation of the BaltimorePolice Department and its employees.

BANK OF NOVA SCOTIA: Court Consolidates Price-Fixing Suits----------------------------------------------------------Judge Valerie Caproni of the United States District Court for theSouthern District of New York issued two lengthy opinions onOctober 3 permitting consolidated class action lawsuits on behalfof proposed classes of investors in physical gold and goldderivatives and physical silver and silver derivatives to proceedto discovery.

The cases concern the London Gold Fix and the London Silver Fix,which are key benchmark rates for gold, silver, and relatedfinancial instruments. For many years, The Bank of Nova Scotia,Barclays, Deutsche Bank, HSBC, and Societe Generale met in privateto conduct the Gold Fix. Similarly, for many years, The Bank ofNova Scotia, Deutsche Bank, and HSBC met in private to conduct theSilver Fix. The investor Plaintiffs (who sold physical gold andsilver and related futures and options contracts on these metals)accused the Fixing Bank Defendants of utilizing their preferredpositions at the Gold and Silver Fixes to collude and effectively"name their own" Fix price and thereby gain an unfair advantagewith respect to the contracts, derivatives, and physical positionsthat they held in the market, all of which were correlated to theFix price in one way or another.

In her opinion, Judge Caproni concluded that the investorPlaintiffs had sufficiently stated a claim for conspiracy inrestraint of trade against the Fixing Bank Defendants. JudgeCaproni further determined that the investor Plaintiffs havestanding to bring antitrust and Commodity Exchange Act claimsagainst the Fixing Bank Defendants. The investor Plaintiffs hadalso named UBS as a defendant in both cases, but Judge Capronidismissed UBS as a defendant noting that it was not a party toeither the Gold or Silver Fix. Judge Caproni also dismissedcertain claims brought by ETF investors.

BARNES & NOBLE: Judge Tosses Class Action Over 2012 Data Breach---------------------------------------------------------------Dana Herra, writing for Cook County Record, reports that a federaljudge has dismissed an attempt by customers of Barnes & Noble tosue the bookseller over a 2012 data breach they say exposed themto an increased risk of identity theft.

In September 2012, PIN-pad terminals in 63 Barnes & Noble storeswere tampered with, allowing individuals known as "skimmers" tocollect customers' data when they swiped their credit and debitcards. Barnes & Noble publicly announced the breach six weeksafter it was discovered.

The four named plaintiffs in the case then filed a class actionsuit against the company. According to court documents,plaintiffs Ray Clutts, Heather Dieffenbach, Jonathan Honor andSusan Winstead were all customers who shopped at affected Barnes &Noble stores while the skimming devices were in place.

The plaintiffs' original complaint, filed in 2013, was dismissedfor lack of standing. On Oct. 3, Judge Andrea R. Wood dismissedall counts of the plaintiff's amended complaint, finding that,though the plaintiffs had established standing, they still failedto state a claim.

The invasion of privacy claim was dismissed because the judge saidit applies only to the public disclosure of highly offensive orembarrassing private information. Not only was the plaintiffs'personal information not made public, the court wrote, such dataas names, birth dates and credit card numbers could not beconsidered offensive or embarrassing.

The four remaining counts all shared the same fatal flaw, thejudge wrote: Failure to show that any of the plaintiffs sufferedactual financial damages as a result of their claims.

On the breach of implied contract claim, the plaintiffs arguedthat Barnes & Noble was obligated to "reasonably safeguard" itscustomers' personal identifying information. The judge sided withthe bookseller in finding that regardless of whether such acontract existed, under state law, a breach of contract claim canonly stand if the plaintiffs suffered actual damages. Theplaintiffs tried to argue that the cost of protecting itscustomers' data is built into the company's prices, but the courtwas unconvinced.

"The court rejects Plaintiffs' arguments that overpayment forgoods at Barnes & Noble or the loss of the value of Plaintiffs'PII represent damages for the purposes of the breach of contractcount," she wrote.

Ms. Winstead argued that she had suffered financial losses in theform of monthly payments to an identity protection monitoringservice, but the amended complaint made it clear that she hadsubscribed to the service even before the data breach, accordingto court documents.

A claim for damages under the ICFA also requires the plaintiff toshow some actual injury suffered as a result of a business'deception. The court noted that the law specifically states anincreased risk of future identity theft does not qualify fordamages under the act.

The California Security Breach Notification Act only requires abusiness that conducts business in California to notify residentswhose information may have been compromised of a data securitybreach. The court found that the six-week lag between thediscovery of the data breach and the public announcement was toolong under the law, but again, the one plaintiff who lives inCalifornia was unable to show that the lag caused her any injury.

That plaintiff's claim under the Unfair Competition Act in herhome state had the same problem. The Unfair Competition Actprohibits business practices that create unfair competition, but aclaim under the act must show damages. Case law has establishedthat an increased risk of identity theft does not qualify asdamage under the act, the judge wrote.

Plaintiffs in the case were represented by attorneys with thefirms of Barnow & Associates, of Chicago; Grant & Eisenhofer, ofChicago; and Siprut P.C., of Chicago.

Barnes & Noble was represented by the firms of Honigman MillerSchwartz and Cohn, of Chicago; and Arnold & Porter, of Washington,D.C.

BAYER CORP: Judge to Consolidate 50 Nearly Essure Suits-------------------------------------------------------Ben Hancock, writing for The Recorder, reports that a small armyof plaintiffs lawyers are set to gain a tactical advantage indozens of California lawsuits against Bayer Corp. that accuse thedrug giant of failing to warn women about the dangers of a birthcontrol implant.

A state court judge on Sept. 30 said she plans to grant a motionthat will bring pretrial proceedings for nearly 50 cases overBayer's Essure device pending in courthouses across Californiaunder one roof.

Coordinating the cases, plaintiffs attorneys say, will allow themto pool their resources and add momentum to the litigation againstthe company. It will also move the cases into a courtroom whereplaintiffs have so far gotten some traction with their arguments,and tees up a big fight over the scope of a fresh state SupremeCourt decision on mass torts.

Alameda County Superior Court Judge Winifred Smith, who ispresiding over half of the Essure cases pending in California, inAugust rejected arguments by Bayer's attorneys that certain claimsover the medical device are pre-empted under federal law andbarred by the statute of limitations.

On Sept. 30, Judge Smith said during a hearing she thinks thatbringing the remainder of the cases into her courtroom makes sensebecause they share many common aspects, and because doing so wouldconserve court resources.

Judge Smith's order, which she said would be issued later on Sept.30, will technically serve as a recommendation to California'sJudicial Council in favor of coordination. But plaintiffsattorneys say it is rare for the council to rebuff the opinion ofa judge.

The mass tort litigation centers on claims that Bayer failed todisclose to the Food and Drug Administration and health careproviders that its Essure implant could cause serious healthrisks, such as perforation of the uterus, chronic pain andprolonged bleeding, as well as unintended pregnancies.

Many of the cases filed in California involve plaintiffs fromoutside the state, and bringing the suits together almost ensuresa brawl over the extent to which of those claims can proceed inCalifornia courts. The litigation could test the bounds of aCalifornia Supreme Court ruling in August holding that Bristol-Meyers Squibb could be sued in the state's courts by out-of-stateresidents.

Much of the development of the Essure device was conducted in theBay Area by a startup that was later bought out by Bayer,according to plaintiffs.

Arguing for coordination on Sept. 30, Fidelma Fitzpatrick ofMotley Rice said that there are at least 31 different law firmswith Essure cases against Bayer pending in California. While theyhave been trying to cooperate and keep the courts apprised ofrulings in similar cases, "that becomes increasingly difficult asmore attorneys get involved and more cases are filed,"Ms. Fitzpatrick said.

Bayer, in its written opposition to the coordination motion, waseven more pointed. "Ultimately, plaintiffs are not seekingcoordination -- which the parties were managing just fine on theirown -- but to avoid courts in which their complaints had notsurvived a demurrer," its attorneys wrote.

BP AMERICA: "Cecil" Suit Claims Non-Payment of Oil Well Royalties-----------------------------------------------------------------JOHN CECIL, on behalf of himself and all others similarlysituated, v. BP AMERICA PRODUCTION COMPANY (including affiliatedpredecessors and affiliated successors) Case No. 6:16-cv-00410-KEW(E.D. Okla., September 28, 2016), alleges actual, knowing andwillful underpayment or non-payment of royalties on natural gasand/or constituents of the gas stream produced from wells throughimproper accounting methods and by failing to account for and payroyalties.

BP AMERICA PRODUCTION COMPANY is in the business of producing andmarketing gas and constituent products.

CANADA: RCMP Commissioner Apologizes for Harassments----------------------------------------------------The Canadian Press reports that RCMP Commissioner Bob Paulsondelivered an abject apology on Oct. 6 to hundreds of current andformer female officers and employees who were subjected to allegedincidents of bullying, discrimination and harassment dating back42 years.

Mr. Paulson made the apology as he announced the settlement of twoclass-action lawsuits stemming from the harassment allegations,some of which date back to September 1974. He said the federalgovernment has earmarked $100 million for payouts

"To all the women, I stand humbly before you today and solemnlyoffer our sincere apology," an emotional Paulson told a newsconference in Ottawa.

"You came to the RCMP wanting to personally contribute to yourcommunity and we failed you. We hurt you. For that, I am trulysorry."

Mr. Paulson said the settlements would provide financialcompensation for the women and pave the way to end potentialclass-action lawsuits brought forward by former RCMP members JanetMerlo and Linda Gillis Davidson. There is no cap on the potentialcost of the payouts, he added.

Mr. Paulson was joined at the news conference by the plaintiffs,as well as Public Safety Minister Ralph Goodale and LabourMinister MaryAnn Mihychuk.

"The impact this has had on those who have experienced thisshameful conduct cannot -- must not -- be solely understood as anadverse workplace condition for which they must be compensated,"Paulson said.

"For many of our women this harassment has hurt them mentally andphysically. It is has destroyed relationships and marriages, andeven whole families have suffered as a result. Their very liveshave been affected."

Ms. Merlo took the podium after Mr. Paulson was finished, callingit "a great day for the RCMP" and thanking the commissioner onbehalf of the other female members represented in the lawsuits.

"They just wanted it to be a better place to work," Ms. Merlosaid. "For them I'm really thankful that today finally arrived."

As she left the podium, she embraced Mr. Paulson, who wiped tearsfrom his eyes as he sat back down.

"I love my flag, I love my country and I loved my job; I left waytoo early," added Ms. Davidson, who also extended her thanks tothe commissioner.

"I will continue to stand up and right the wrongs if I can," shesaid. "We are, we were and we always will be your greatestasset."

Hundreds of former and serving female Mounties and civilianmembers have said they were victims of harassment, bullying andassault dating back to when women first joined the force.

The settlement likely marks the beginning of the end a difficultepisode in the force's history, one that has haunted Paulson'stenure as commissioner.

"The announcement . . . closes the door on a deeply troubling andunfortunate period in the history of our national police force,"Mr. Goodale said.

"It is an encouraging moment, demonstrating a deep desire on thepart of all parties to move forward in a positive and constructivemanner -- starting immediately."

Though neither of the two class actions has been certified, thesettlement agreements will be submitted to the courts, paving theway for approval. There will be a deadline for signing on to theactions, which means it is too early to tell how many membersmight be compensated.

Ms. Merlo, whose proposed class-action suit was filed in BritishColumbia, said she experienced many instances of sexual harassmentthat left her with post-traumatic stress disorder.

Ms. Davidson said she endured unwanted sexual advances andrepeated harassment during her 27-year career, which included astint with the prime minister's protective detail. Her lawsuitwas filed in Ontario Superior Court.

The police force has streamlined the process for addressingconflict, giving supervisors more power to deal with disputespromptly, but some critics fear that has opened the door toabuses.

Mr. Goodale has already asked the RCMP watchdog to revisit thebroad issue of bullying and harassment within the force.

The Civilian Review and Complaints Commission for the RCMP islooking at whether recommendations it made three years ago havebeen implemented.

Const. Pernell Cardinal of the Maskwacis RCMP detachment was beinginvestigated for six counts of sexual misconduct. An RCMPspokesman confirmed in late September that three of those countswere substantiated during an internal RCMP hearing.

The exact details of the incidents were not released by the RCMP.

Cardinal was suspended by the force in September, although it'snot known if he was suspended with or without pay. He was giventwo weeks to appeal the decision.

Cardinal has been in the news often, as an RCMP spokesperson forthe Chelsea Yellowbird case. Ms. Yellowbird, 23, was shot andkilled outside a residence on Samson Cree Nation in September2011.

In 2010, Cardinal was awarded a Canada Bravery Medal for saving aman from a burning house at Samson Cree Nation with his partner,Const. David Lee.

Const. Cardinal's brother, Perry, is also a member of theMaskwacis RCMP.

One year ago, the RCMP was defending its workplace policiesagainst a class action lawsuit from nearly 400 female RCMPofficers and civilian employees.

The lawsuit alleges systemic harassment, bullying and genderdiscrimination. A third of the women involved are still employedby the RCMP.

CANADA: RCMP Apology Beginning of Recovery, Former Mountie Says---------------------------------------------------------------Stephanie Ip, writing for Vancouver Sun, reports that an apologyissued by RCMP Commissioner Bob Paulson to the hundreds of womenbehind two class-action sexual harassment lawsuits is only thebeginning of the recovery, according to former B.C. MountieCatherine Galliford.

"It can be the closing of a chapter, but it's not the end of thebook," she said.

Ms. Galliford, formerly a high-profile RCMP spokeswoman, filed alawsuit in 2012 that shone a light on two decades of sexualharassment and bullying she suffered within the RCMP and hereventual diagnosis of post-traumatic stress disorder. Her casewas scheduled to go to trial in 2017, before she received an out-of-court settlement and a medical discharge this spring.

The lawsuit paved the way for hundreds of other female RCMPofficers and employees to speak up about similar experiences --some of which date back to the 1970s -- culminating in two class-action suits being brought forward in B.C. and in Ontario.

On Oct. 6, Mr. Paulson delivered an apology to those women andannounced $100 million had been earmarked for settlements in thetwo suits. Neither of the class-action lawsuits have beencertified and the settlement agreements will still need to beapproved by the courts.

"The beauty of it is that Commissioner Paulson gave an apology andI think, for all of these women, that's what they were waitingfor," Ms. Galliford told Postmedia News on Oct. 6. "They wantedan apology, an acknowledgement and validation of what they weregoing through when no one listened."

However, Ms. Galliford expressed skepticism over whether theOct. 6 apology and settlement would translate into the type ofchange she believes is needed throughout the police force.

"Do I believe the apology was necessary? I absolutely do. Am Isitting back and waiting for changes within the RCMP? I don'tthink so," she said. "It's a culture and I don't know if anythingwill change until the perpetrators are held accountable and theRCMP becomes more transparent."

Among the changes Ms. Galliford wants to see is a move toprovincial police forces, instead of a country-wide force. Shesays the RCMP has become "too big to be managed" and that it "hasbeen allowed to run rampant for too long with lack of independentoversight."

"This is the beginning of something. I don't know what but thereare still so many people out there who are so afraid to tell theirstories," she said.

The two class-action suits were brought forth by former RCMPmembers Janet Merlo and Linda Gillis Davidson. Both women werepresent on Oct. 6 when Mr. Paulson delivered the apology.

It remains to be seen how many women will be compensated as aresult of the settlement agreements. There is no cap to thepotential amount of payouts.

CANADA: RCMP Class Action Plaintiff Overjoyed by Apology--------------------------------------------------------Doug Diaczuk, writing for tbnewswatch, reports that Heli Kijanen,who has been fighting for justice in the face of genderdiscrimination from one of Canada's top institutions will finallyhave closure.

"Thank you to the RCMP for acknowledging your wrongdoing,"Ms. Kijanen said on Oct. 6.

"I can now close a chapter in my book that has been open andbleeding for many years."

A settlement has been reached in a class-action lawsuit filedagainst the Royal Canadian Mounted Police in 2011 involvingharassment, discrimination, bullying, and sexual abuse againstfemale officers and civilian employees.

On Oct. 6, Ms. Kijanen and hundreds of other women who faceddiscrimination while working for the RCMP, watched as RCMPcommissioner, Bob Paulson, publically apologized for the conductof the national police force.

"To all the women who have been impacted by the force's failure tohave protected your experience at work, and on behalf of everyleader, supervisor or manager, every commissioner, I stand humblybefore you today and solemnly offer our sincere apology,"Mr. Paulson said during a news conference in Ottawa.

Ms. Kijanen joined the RCMP in 2008 but said she was forced outtwo years later because of constant bullying and discrimination.Ms. Kijanen said she experienced physical and mental distress, aswell as post-traumatic stress disorder resulting from herexperiences.

Ms. Kijanen and Thunder Bay lawyer, Alexander Zaitzeff, started aclass-action lawsuit with other women from across the country whoalso faced discrimination and abuse while working at the RCMP.

Six years later, that lawsuit has been settled and Ms. Kijanen,who was there at the beginning, said she is overjoyed to bewatching the public apology at the end of a long six years.

"In the beginning, I just dreamt about it," she said. "I neverthought I would see it. About an hour ago I was actually watchingit on video on my phone in private and I just felt such wonderfulfeeling and hope for the future, for Mounties, and females whowant to join and work in a society where they are accepted andthey don't have to over-prove themselves, they don't have to bedragged under the system because it's a boys club."

Thunder Bay lawyer, Christopher Watkins, who worked withMr. Zaitzeff on the case, said details of the settlement cannot bediscussed at this time because they are yet to be ratified by afederal court.

There are thousands of women who have worked with the RCMP asofficers or civilian members dating back to 1974 who could qualifyfor compensation. The settlement could cost the RCMP more than$100 million.

"I think the RCMP took a brave step forward, as well as thegovernment today, by starting to deal with this significantissue," Mr. Watkins said.

"I think for the brave women of the RCMP who have faced genderedbased discrimination this is a significant step forward for thehistory of policing in our country. We look at an evolution ofchange in our modern society and I think this will be known as abenchmark case for moving forward gender based discriminationbased cases and gender rights, not only in our province but thecountry as well."

While hearing the public apology from commissioner Paulson is asignificant moment for Ms. Kijanen, she said that actions willspeak louder than words.

"Time will tell how sincere they really are," she said. "But atleast now that they have been under the gun and under themicroscope, people are watching. Ever since we came out six years,people started watching."

For Ms. Kijanen, the proof of sincerity could lie within theRCMP's willingness to take members back who have been pushed orleft due to harassment.

"I would be one of those members that would be more than willingto go back into the force and make real change," Ms. Kijanen said.

Ms. Kijanen said could not have made it through those six years offighting without the support of her family and friends and sheencourages anyone who has faced injustice to keep fighting.

"I want to tell everybody out there: if you fight for somethinglong enough that you firmly believe in, if it's right and it'sjust, it will happen and to never give up," she said. "Icongratulate all the female Mounties out there."

CARMEL, IN: Judge Dismisses Class Action Over Traffic Ordinance---------------------------------------------------------------Lindsey Erdody, writing for Indianapolis Business Journal, reportsthat a U.S. District Court judge has dismissed a federal class-action lawsuit filed against the city of Carmel for itsenforcement of a local traffic ordinance.

Attorney Edward Bielski, president of Bielski Law LLC and formerpartner of Stewart & Irwin PC filed the lawsuit against the cityat the end of last year alleging the city knowingly enforced anillegal traffic ordinance and wrongly collected money fromcitations "to maximize city revenue."

The lawsuit named 18 plaintiffs, of which only two were Carmelresidents. All had been cited under Carmel's local trafficordinance, which was deemed invalid by the Indiana Court ofAppeals in a separate lawsuit last year.

The plaintiffs claimed the illegal citations resulted in higherauto insurance rates and points on their driver's licenses.

The complaint also said the motorists were given false informationregarding their traffic infractions, so they couldn't properlydefend themselves. It also alleged city police had a policy ofwrongly ticketing drivers on Interstate 465 and wrongly ticketingdrivers for non-moving violations.

Carmel had requested the court dismiss the lawsuit and argued thatthe "harm" the plaintiffs described would have occurred regardlessof how they were cited because all of them admitted to the trafficviolations.

In the decision issued on Oct. 6, U.S. District Court Judge JaneMagnus-Stinson agreed that the complaint did not tie the allegedharm to the Carmel defendants, which included Mayor Jim Brainard,Carmel City Council members from 2014 and 2015, Carmel City Court,Carmel City Judge Brian Poindexter, Carmel attorney Doug Haney andIndiana Bureau of Motor Vehicles superintendent Kent Abernathy.

"We are pleased with this decision that confirms our view thatthis case was frivolous and needed to be dismissed to preservejustice and the procedures used by many cities and towns acrossIndiana," Mr. Brainard said in a statement sent to IBJ.

Since initially filing the lawsuit in December, Mr. Bielskiamended the complaint several times and repeatedly stated that"discovery will show" the claims to be true.

Among several reasons cited to dismiss the case, Judge Magnus-Stinson ruled that many of plaintiffs' claims were "toospeculative."

". . . These allegations all turn wholly on what plaintiffs thinkthey will learn through discovery, and not on what plaintiffsalready know to be true," Magnus-Stinson wrote.

In addition, Judge Magnus-Stinson found that some of theplaintiffs' claims lacked standing.

The suit stems from the city's previous traffic ordinance that wasfound to violate the state's Home Rule act because it duplicatedstate law. The Indiana Court of Appeals decided that case Dec. 11,and the city later repealed the ordinance in question.

That lawsuit had been filed by Jason Maraman, who had been pulledover and cited for driving 30 mph in a construction zone with a 20mph speed limit.

Mr. Maraman is still pursuing another federal lawsuit against thecity in which he accuses a Carmel police officer of giving falsetestimony and targeting his vehicle for having an out-of-countylicense plate. He also accuses the officer of inappropriatelyattempting to speak with a judge during a recess in one of theprevious hearings.

In her ruling, Magnus-Stinson accuses the plaintiffs in the class-action lawsuit of trying to "piggyback onto Mr. Maraman'ssuccess," but because the traffic ordinance wasn't deemed invalidat the time they received their tickets, the issue doesn't apply.

Carmel had also requested sanctions against Mr. Bielski andrequested that he be ordered to pay all or at least a significantportion of the city's legal fees.

The judge denied the request, saying sanctions weren't warranted,but did note concerns with how the case was handled.

"The Court is disturbed by Plaintiffs' scattershot approach tothis litigation, as demonstrated by the fact that Plaintiffsamended their complaint three times in three months," JudgeMagnus-Stinson wrote.

Judge Abrams, therefore, ordered that (i) a class is certifiedunder the New York Labor Law consisting of "all persons who havebeen employed by the Defendants as servers, bussers, bartenders,and/or barbacks in the State of New York since April 28, 2009";(ii) absent class members' claims are tolled; and (iii) theactions are consolidated into lead case 15 Civ. 3312 (RA) (SN).

The Plaintiffs in the three related Fair Labor Standards Actcollective actions move for consolidation and class certificationfor their NYLL claims, and tolling of absent class members' NYLLclaims. The Defendants objected to the class certificationdetermination, and the Plaintiff responded to the Objections.

As the Court finds each of these objections unconvincing after ade nova review, and no clear error in the remainder of the Report,the Plaintiffs' motion for consolidation, class certification, andtolling is granted, Judge Abrams stated.

A copy of the Order is available at no charge athttps://goo.gl/gVUMZ6 from Leagle.com.

The district court ruled that the suit was preempted by the Food,Drug, and Cosmetic Act (FDCA), dismissing the complaint. Thethree-judge panel for the First Circuit disagreed. While findingthat CVS would be protected by the safe harbor of FDCA if itslabel met the requirements of section 343(r), the panel ultimatelydecided that Kaufman adequately pled that the labeling does notmeet the statutory requirements.

Plaintiffs-Appellants William A. Hill and Tanica Brown, who workedat the concessions at Oriole Park, the home field of the BaltimoreOrioles, seek overtime compensation, which Defendant-AppelleeDelaware North Companies Sportservice Inc. (DNC Sportservice), theowner of these concessions, chose not to pay on the basis that any"amusement or recreational establishment" is exempt from payingovertime if its operations or receipts show that its business isseasonal. Appellants were employees of Maryland Sportservice'sconcessions. Hill was employed from March through most of June2011, and Brown was employed from February to June 2011.

Judge William N. Skretny of the United States District Court forthe Western District of New York granted summary judgment in favorof DNC Sportservice, reasoning that it was exempt because theconcession activities "were an integral part of the amusement andrecreational character of Oriole Park."

On appeal, Plaintiffs argue that it is "evident that DelawareNorth's operations, which are limited to the provision of food andretail services, are not of a recreational or amusementcharacter."

In his Decision dated October 3, 2016 available athttps://is.gd/4Y8z0Z from Leagle.com, Judge Parker concluded thatMaryland Sportservice is an "amusement or recreationalestablishment" under the FLSA because it is a "concessionaire" atan amusement or recreational facility, which Congress intended toexempt if it also meets one of the seasonality tests. BecauseMaryland Sportservice satisfies the receipts test as applied tonew businesses under DOL's guidance, Appellants were exempt fromovertime compensation under 29 U.S.C. Section 213(a)(3).

DOLGENCORP LLC: Faces "Erlandson" Suit Seeking OT Pay Under FLSA----------------------------------------------------------------DAVID ERLANDSON, on behalf of himself and others similarlysituated, v. DOLGENCORP, LLC, Case No. 1:16-cv-00315-MW-GRJ (N.D.Fla., September 28, 2016), alleges that the Plaintiff is owedcompensation for time actually worked but not paid, and back wagesunder the Fair Labor Standards Act.

DRILL-CHEM LLC: Faces "Julmis" Suit Alleging Violation of FLSA--------------------------------------------------------------JULMITO JULMIS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLYSITUATED, Plaintiffs, V. DRILL-CHEM, LLC, Defendant, Civ. No.5:16-CV-975 (W.D. Tex., September 30, 2016), alleges that DrillChem fails to pay Day-Rate employees time and one-half of theirregular rate for all hours worked over forty in a workweek inviolation of the Fair Labor Standards Act.

DRILL-CHEM, LLC provides products and services to the oil and gasindustry.

EASTMAN KODAK: Plaintiff Lawyers Take Home $2.4-Mil. in Fees------------------------------------------------------------District Judge David G. Larimer of the United States DistrictCourt for the Western District of New York granted plaintiffs'counsel a reduced award of attorneys' fees of 25% of the commonfund, for a total of $2,425,000.00, plus the requested costs andexpenses in the amount of $119,100.88; and awarded $5,000.00 foreach of the class representatives in the case captioned, IN REEASTMAN KODAK ERISA LITIGATION, Case No. 12-CV-6051L (W.D.N.Y.).

Plaintiffs brought the class action (consolidated from severalseparately-filed cases) against Eastman Kodak and other defendantsalleging violations of the Employee Retirement Income Security Act(ERISA), 29 U.S.C. Section 1001 et seq. Plaintiffs generallyallege that the defendants, fiduciaries of the Eastman KodakEmployees' Savings and Investment Plan (the Plan), breached theirERISA-mandated duties through imprudent management, oversight andadministration of the Plan.

The operative complaint -- an Amended Complaint reflecting theconsolidation of seven separately-filed actions -- was filedSeptember 14, 2012. Defendants filed motions to dismiss thecomplaint on October 29, 2012, which were thoroughly briefed andargued. The Court denied those motions on December 17, 2014, andthe parties commenced discovery in or about February 2015, whichincluded exchanges of interrogatories and requests for admissions,some exchanges of documents, and motions to compel.

In December 2015, the parties agreed to formal mediation toattempt to resolve the matter, and after just one day of mediationwhich took place in February 24, 2016, the parties reached anagreement to settle the case in its entirety. On April 22, 2016,the parties executed a Settlement Agreement memorializing itsterms.

In the motion, the parties move for approval of the settlement,which the Court has granted by a separate order, and for an awardof attorney fees for plaintiffs' counsel, representing 30% of the$9.7 million common fund, plus costs, expenses, and classrepresentative awards. Plaintiffs claim that these actionsrequired the expenditure of over 2,200 hours of attorney time bycounsel at six different firms, at billing rates ranging up to$950/hour, resulting in a lodestar amount of over $1.5 million.

In his Decision and Order dated October 4, 2016, available athttps://is.gd/LwzsKf from Leagle.com, Judge Larimer found that thesheer size of plaintiffs' counsel roster would, of necessity, havecaused appreciable duplication of effort, and that an award ofattorneys' fees in the full amount requested by plaintiffs wouldexceed what is a reasonable fee and granted an attorney fee awardof 25% of the common fund in the total amount of $2,425,000.00,plus requested costs and expenses which the Court finds arereasonable in the amount of $119,100.88, and class representativeawards of $35,000.00.

ELECTROLUX HOME: Court Narrows Claims in "Elward" Suit------------------------------------------------------District Judge John Z. Lee of the United States District Court forthe Northern District of Illinois granted in part a motion todismiss the First Amended Complaint in the case captioned, TERESAELWARD, individually and on behalf of all others similarlysituated, Plaintiffs, v. ELECTROLUX HOME PRODUCTS, INC.,Defendant, Case No. 15 C 9882 (N.D. Ill.), for failure to state aclaim and for failure to plead the fraud claims withparticularity.

Elward alleges that she and other consumers purchased Electroluxdishwashers through Electrolux's agents. Elward asserts thatElectrolux dishwashers are defective because the electrical systemoverheats, causing its electrical components to catch on fire andmelt the tub that contains the water.

Electrolux moved to dismiss the First Amended Complaint forfailure to state a claim and for failure to plead the fraud claimswith particularity.

In his Memorandum Opinion and Order dated October 3, 2016available at https://is.gd/sNKocu from Leagle.com, Judge Leegranted the motion to dismiss Counts VI and VII because requestsfor declaratory judgment and injunctions are not independentcauses of action. He denied the motion as to all other respects,finding that the Plaintiff has sufficiently alleged claims.

A slew of lawsuits have been filed against Fiat ChryslerAutomobiles, the manufacturer of Jeep.

The suits claim a defective gear shifter contributed to hundredsof incidents, including the death of Star Trek actor Anton Yelchinafter his Jeep Grand Cherokee rolled backward when he was standingbehind it and it pinned him against a pillar and fence.

More than a dozen federal lawsuits have been filed across sevenstates in response to a National Highway Transportation SafetyAdministration investigation into the gear shifters. Five of themare class actions and two are individual personal injury suits.

A judicial panel on Oct. 5 ruled that three class actions, inCalifornia, New York and Tennessee, should be centralized to theEastern District of Michigan, where FCA is headquartered. On Oct.6 it conditionally transferred four more cases. (The panel did notimmediately decide if individual personal injury cases should beincluded.)

"The actions share complex factual questions arising out ofallegations that the monostable electronic gearshift installed incertain vehicles manufactured by FCA US LLC is defective andunreasonably dangerous in that it allegedly fails to provide thedriver with an adequate indication of whether the vehicle is inthe 'park' position and lacks a safety override function thatwould place the vehicle in 'park' automatically when a driverexits the vehicle while it is in another gear," writes Judge SarahVance, the panel chair.

Mr. Yelchin's parents, Victor and Irina, are also suing theautomobile manufacturer and the dealership that sold the Jeep.That suit was filed in California state court, so it will not beconsolidated with the others. TMZ reported on Oct. 6 that thedealership claims Mr. Yelchin's death was the result of "misuse,misapplication, or damage" of the Jeep.

The Yelchin family attorneys did not immediately respond to arequest for comment.

Judge Shubb certifies a class of individuals, who -- (1) purchasedor leased any 2005 through 2011 Ford Focus vehicle in California,(2) currently own such a vehicle, and (3) currently reside in theUnited States.

A copy of the Order is available at no charge athttps://goo.gl/Mb9SC7 from Leagle.com.

GOLDMAN SACHS: "Bloom" Lawsuit Transferred from Cal. to N.Y.------------------------------------------------------------CHARLES BLOOM AND SHARON BURNSTEIN, Individually and on Behalf ofAll Others Similarly Situated, v. GOLDMAN, SACHS & CO., et al.,Case No. 1:16-cv-07528-UA (August 24, 2016), was transferred fromthe United States District Court for the Northern District ofCalifornia to the U.S. District Court for the Southern District ofNew York.

The case alleges that Plaintiffs purchased 650,000 shares of 6.75%Series A Convertible Preferred Stock pursuant to offeringdocuments that contained untrue statements of material fact andomitted to state other material facts necessary to make thestatements made in the offering documents not misleading inviolation of the Securities and Exchange Act.

The Goldman Sachs Group, Inc. is an American multinational bankingfirm that engages in global investment banking, investmentmanagement, securities, and other financial services, primarilywith institutional clients.

Donald Prophete -- dprophete@constangy.com -- and Jeffrey M. Rosin-- jrosin@constangy.com -- of labor and employment law firmConstangy Brooks Smith & Prophete recently authored a blogquestioning the decision and majority rationale of the U.S. Courtof Appeals for the Third Circuit in Williams v. Jani-King ofPhiladelphia, Inc.

Plaintiffs Daryl Williams and Howards Brooks bought a commercialcleaning business from Jani-King under federal franchise laws,thereby making them franchisees. Filing suit on behalf of a groupof fellow franchisees in the Philadelphia area,Mr. Williams and Brooks believe Jani-King misclassified them as"independent contractors" instead of "employees."

Messrs. Williams and Brooks claimed they seldom or never hiredemployees to assist with cleaning, and therefore sought unpaidwages under the Pennsylvania Wage Payment and Collection Law(WPCL). The WPCL mandates employers to regularly provide paymentand benefits, and limits deductions that can be made.

Last year, a district court granted their motion for classcertification.

Jani-King appealed the ruling to the Third Circuit, whose task itwas to consider "whether the misclassification claim can be madeon a class-wide basis through common evidence, primarily thefranchise agreement and manuals." Jani-King sought to reverse theclass certification.

Judge D. Michael Fisher found the aforementioned agreement andmanuals were applicable to the putative class members.

"The common evidence identified by the plaintiffs and the DistrictCourt are the Jani-King franchise agreement, policies manual, andtraining manual, and representative testimony about thosedocuments," Judge Fisher wrote. "The District Court concludedthat the plaintiffs' claims could be proven through this commonevidence and that, therefore, the plaintiffs met the predominancerequirement."

"We hold that the claims in this case are susceptible to class-wide determination and that the District Court did not abuse itsdiscretion by certifying the class," Judge Fisher wrote.

However, Judge Robert E. Cowen dissented from his colleagues,terming franchising "a bedrock of the American economy" andfeeling the majority result harmed the prospect of that samebedrock.

"I do not believe that such a result is consistent with eitherbasic class action principles, the nature and importance of thefranchisor-franchise relationship, or prior franchising case law,"Judge Cowen said.

Judge Cowen also believed the common documents cited did notprovide for a class certification.

"In this case, the plaintiffs' purported common evidence merelysets forth various franchise system controls. Because of theabsence of common evidence tending to prove that the franchiseesare employees of the franchisor, the District Court abused itsdiscretion by certifying a class of Jani-King franchisees. Itherefore must respectfully dissent," the judge wrote.

Messrs. Prophete and Rosin concurred with Cowen's dissent.

"The dissent noted [correctly, in our opinion] that in conductinga misclassification analysis the court should disregard anycontrols required by franchise law to promote uniformity withinthe system and manage the end-user's experience with the franchisebrand," Messrs. Prophete and Rosin wrote in their blog. "Once thecontrols required by franchise law were ignored, the dissentrecognized, there really were no 'controls' left."

When reached for comment, Rosin, chairman of his firm's FranchiseIndustry Practice Group, went on to say franchisors, under thefederal franchise disclosure rule, are "required to exertsignificant controls over their franchisees."

"If the employment relationship is governed by whether you haverights of control over the employee, that's fine, but keep in mindthe franchisor is supposed to have significant rights of controlover the franchisee, under the franchise laws," Mr. Rosin said.

Mr. Rosin rhetorically asked how it was possible for the two legalconcepts to be squared without having the Pennsylvania employmentlaw test "obliterate" the federal franchise law.

"The dissent really honed in on that, and recognized that youreally have to understand that's what a franchisor has to do, andthen look at the relationship," he said. "Essentially, you shouldexclude all of those things a franchisor has to do, before youlook at the relationship and determine whether it's an employmentrelationship. The majority [in this case] never did that."

Mr. Rosin said the court's majority not analyzing this aspect offranchise law was "disappointing."

"They decided what the appropriate test was for the employmentrelationship under Pennsylvania law, and they just simply lookedat that test and said, 'OK, could this test be examined class-widefor this issue?" he said.

Mr. Rosin added if that were to be done, it was important for themajority to place "parameters" around the test.

"They didn't put any parameters around it," he said. "The wholepurpose of a class action mechanism is to say there's a commonissue of law and fact here, that should be resolved on a class-wide basis.

"Whether the franchisees are employees is the common issue thatthey found, but if you're going to find that, then say, 'If thiscan be resolved on a class-wide basis, certain things thefranchisor does within the relationship need to be ignored becausethose are all required by franchise law.' Had the majorityanalyzed the case this way, that would have been a more reasonedanalysis."

JPMORGAN CHASE: Court Tackles Satisfaction of Mortgage Issue------------------------------------------------------------District Judge Nelson S. Roman of the United States District Courtfor the Southern District of New York denied Defendant JPMorganChase Bank, N.A.'s motion for summary judgment pursuant to Rule 56of the Federal Rules of Civil Procedure in the case captioned,TINA BELLINO, on behalf of herself and all others similarlysituated, Plaintiffs, v. JPMORGAN CHASE BANK, N.A., Defendant,Case No. 14-CV-3139 (NSR) (S.D.N.Y.).

On March 17, 2004, the sole plaintiff named in the putative classaction, Tina Bellino, obtained a $300,000 mortgage loan fromJPMorgan Chase Bank, N.A. (JPMC) to purchase a house located at 46Highland Avenue in Tarrytown, New York. On May 11, 2012, Bellinosold the house. At some point thereafter, Bellino used theproceeds from the sale to pay off the outstanding principal,interest, and fees due on the mortgage (the Pay-Off Amount). JPMCreceived a check for the Pay-Off Amount on May 14, 2012 inColumbus, Ohio. A satisfaction of mortgage was sent to theWestchester County Clerk for recording via Federal Express on June13, 2012. The Westchester County Clerk's Office recorded theCertificate on June 21, 2012.

The Complaint purports to bring a class action against JPMC forits alleged violation of Section 275 of the New York Real PropertyLaw (RPL Sec. 275) and Section 1921 of the New York Real PropertyActions and Proceedings Law (RPAPL Sec. 1921).

In the motion, Defendant present a question before the Court onwhether a satisfaction of mortgage or certificate of discharge(satisfaction) is "presented" for recording at the time that it ismailed to, or at the time it is received by, the county clerk.According to JPMC, a satisfaction is presented for recording onthe date that it is placed with a mail service for delivery to theappropriate county clerk. Under this interpretation, JPMCfulfilled its obligation to present Bellino's satisfaction forrecording when it gave the document to FedEx on the 30th day afterthe mortgage was paid off.

In contrast, Bellino argues that the first provision of theStatutes requires that a mortgagee "arrange" to have thesatisfaction presented within 30 days, including by contractingwith third-party services. The second provision imposes strictliability if the satisfaction is not received by the clerk withinthat timeframe. According to Bellino, JPMC violated the statuteby failing to ensure that the satisfaction was "presented to" orreceived by the county clerk within 30 days after the mortgage waspaid off.

In his Opinion and Order dated October 3, 2016 available athttps://is.gd/FLk9Gl from Leagle.com, Judge Roman construed RPLSection 275 and RPAPL Section 1921 to have required that JPMCprovide Bellino's satisfaction to the county clerk for recordingon or before the 30th day after Bellino paid the balance due onher mortgage, finding that a satisfaction is "presented" forrecording upon receipt by the county clerk.

For settlement purposes, Counts III, IV, VI, X and XII arecertified pursuant to Rule 23(b)(2) of Federal Rule of CivilProcedure on behalf of the "Liberty Life Settlement Class" definedas follows:

"(a) Veterans who were honorably discharged from service in the United States Armed Forces and who are participants in ERISA-governed employee welfare benefit plans that provide LTD benefits insured by group LTD policies issued by Liberty Life; and (b) the beneficiaries of such participants."

For settlement purposes, Count I is certified pursuant to Rule23(b)(3) of the Federal Rules of Civil Procedure on behalf of the"Liberty Life Settlement Subclass" defined as follows:

"members of the Settlement Class whose LTD benefits were reduced or offset by the amount of VA benefits paid or payable to that Settlement Subclass Member from January 1, 2008 through the Settlement Effective Date."

James L. Bush is appointed as a Class Representative of theLiberty Life Settlement Class and the Liberty Life SettlementSubclass (Settlement Classes). Absentee Settlement Class MemberAdam Ripka is appointed as a Class Representative of theSettlement Classes. R. Joseph Barton of Cohen Milstein Sellers &Toll, PLLC is appointed as Lead Counsel for the SettlementClasses. Michelle Roberts of Roberts Bartolic LLP is appointed asLiaison Counsel for the Settlement Classes.

The following dates and deadlines are set in order for the Courtto evaluate whether the Settlement should be given Final Approvaland to evaluate Class Counsel's request for an award of attorneys'fees and reimbursement of costs and expenses:

Event Deadline

Last day for Liberty Life to send the October 27, 2016 Settlement Class Notice to its group policyholders

Last day for Liberty Life to October 27, 2016 mail Settlement Subclass Notice to Settlement Subclass Members

Last Day for Class Counsel to file October 27, 2016 Motion for Award of Attorneys' and costs

Last Day for Liberty Life to file December 26, 2016 Declaration re: Settlement Class Notices

Last day for requests for exclusion December 26, 2016 from the Settlement Subclass to be postmarked by Settlement Subclass Members

Last day for Settlement Class Members December 26, 2016 to file objections to the settlement

Last Day for Liberty Life to Provide January 11, 2017 Class Counsel with amounts to be paid to Settlement Subclass Members

Last day for Class Counsel to file Motion January 25, 2017 for Final Approval of Settlement

Hearing on Motion for Final Approval February 28, 2017 of Settlement and application for attorneys' fees and costs

LMS TRANSPORTATION: Faces "Jackson" Suit Under Cal. Business Code-----------------------------------------------------------------WORREN JACKSON, on behalf of himself, all others similarlysituated, and On behalf of the general public, v. LMSTRANSPORTATION LLC and DOES 1-100. Case No. BC-635316 (Cal.Super., County of Los Angeles, September 27, 2016), allegesviolations of the California Business and Professions Code.

LUMBER LIQUIDATORS: "Bennett" Suit Consolidated in MDL 2743-----------------------------------------------------------The class action lawsuit titled Brian Bennett, an individual, onbehalf of himself and all others similarly situated, thePlaintiff, v. Lumber Liquidators, Inc., a Delaware corporation,the Defendant, Case No. 1:16-cv-00281, was transferred from theU.S. District Court for the Western District of North Carolina, tothe U.S. District Court for the District of Eastern District ofVirginia - (Alexandria). The Virginia Court Clerk assigned CaseNo. 1:16-cv-05004-AJT-TRJ to the proceeding.

The Bennett case is being consolidated with MDL 2743 in re: LumberLiquidators Chinese-Manufactured Flooring Durability Marketing andSales Practices Litigation. The MDL was created by Order of theUnited States Judicial Panel on Multidistrict Litigation onOctober 4, 2016. These cases concern the sale and marketing ofChinese-manufactured laminate flooring sold by defendant LumberLiquidators. Despite being marketed as sufficiently durable forresidential use, the Plaintiffs allege that their laminateflooring scratches too easily and fails to meet the advertisedindustry standard. In its October 4, 2016 Order, the MDL Panelfound that the actions in this litigation involve common questionsof fact, and that centralization in the Eastern District ofVirginia will serve the convenience of the parties and witnessesand promote the just and efficient conduct of the litigation. Allactions involve common factual questions regarding the durabilityof Chinese-manufactured laminate flooring sold by LumberLiquidators under the "Dream Home" label, particularly the issueof whether the laminates comply with the allegedly warrantedindustry standard for use in residential settings. Presiding Judgein the MDL is Hon. Anthony J. Trenga, United States DistrictJudge. The lead case is 1:16-md-02743-AJT-TRJ.

LUMBER LIQUIDATORS: "Hotaling" Suit Consolidated in MDL 2743------------------------------------------------------------The class action lawsuit titled Karen Hotaling and MargaretMarkoski, individuals, on behalf of themselves and all otherssimilarly situated, the Plaintiff, v. Lumber Liquidators, Inc., aDelaware corporation, the Defendant, Case No. 2:16-cv-04646, wastransferred from U.S. District Court for the Eastern District ofNew York, to the U.S. District Court for the Eastern District ofVirginia - (Alexandria). The Virginia Eastern District Court Clerkassigned Case No. 1:16-cv-05002-AJT-TRJ to the proceeding.

The Hotaling case is being consolidated with MDL 2743 in re:Lumber Liquidators Chinese-Manufactured Flooring DurabilityMarketing and Sales Practices Litigation. The MDL was created byOrder of the United States Judicial Panel on MultidistrictLitigation on October 4, 2016. These cases concern the sale andmarketing of Chinese-manufactured laminate flooring sold bydefendant Lumber Liquidators. Despite being marketed assufficiently durable for residential use, the Plaintiffs allegethat their laminate flooring scratches too easily and fails tomeet the advertised industry standard. In its October 4, 2016Order, the MDL Panel found that the actions in this litigationinvolve common questions of fact, and that centralization in theEastern District of Virginia will serve the convenience of theparties and witnesses and promote the just and efficient conductof the litigation. All actions involve common factual questionsregarding the durability of Chinese-manufactured laminate flooringsold by Lumber Liquidators under the "Dream Home" label,particularly the issue of whether the laminates comply with theallegedly warranted industry standard for use in residentialsettings. Presiding Judge in the MDL is Hon. Anthony J. Trenga,United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ.

LUMBER LIQUIDATORS: "McPherson" Suit Consolidated in MDL 2743-------------------------------------------------------------The class action lawsuit titled Matthew McPherson, an individual,on behalf of himself and all others similarly situated, thePlaintiff, v. Lumber Liquidators, Inc., a Delaware corporation,the Defendant, Case No. 2:16-cv-01263, was transferred from theU.S. District Court for the Western District of Pennsylvania, tothe U.S. District Court for the Eastern District of Virginia -(Alexandria). The Virginia Eastern District Court Clerk assignedCase No. 1:16-cv-05003-AJT-TRJ to the proceeding.

The Mcpherson case is being consolidated with MDL 2743 in re:Lumber Liquidators Chinese-Manufactured Flooring DurabilityMarketing and Sales Practices Litigation. The MDL was created byOrder of the United States Judicial Panel on MultidistrictLitigation on October 4, 2016. These cases concern the sale andmarketing of Chinese-manufactured laminate flooring sold bydefendant Lumber Liquidators. Despite being marketed assufficiently durable for residential use, the Plaintiffs allegethat their laminate flooring scratches too easily and fails tomeet the advertised industry standard. In its October 4, 2016Order, the MDL Panel found that the actions in this litigationinvolve common questions of fact, and that centralization in theEastern District of Virginia will serve the convenience of theparties and witnesses and promote the just and efficient conductof the litigation. All actions involve common factual questionsregarding the durability of Chinese-manufactured laminate flooringsold by Lumber Liquidators under the "Dream Home" label,particularly the issue of whether the laminates comply with theallegedly warranted industry standard for use in residentialsettings. Presiding Judge in the MDL is Hon. Anthony J. Trenga,United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ.

LUMBER LIQUIDATORS: "Ryan" Suit Consolidated in MDL 2743--------------------------------------------------------The class action lawsuit titled Kelly Ryan, an individual, onbehalf of herself and all others similarly situated, the Plaintiffv. Lumber Liquidators, Inc., a Delaware corporation, theDefendant, Case No. 2:16-cv-01978, was transferred from the U.S.District Court for the District of Nevada, to the U.S. DistrictCourt for the Eastern District of Virginia - (Alexandria). TheVirginia Eastern District Court Clerk assigned Case No. 1:16-cv-05005-AJT-TRJ to the proceeding.

The Ryan case is being consolidated with MDL 2743 in re: LumberLiquidators Chinese-Manufactured Flooring Durability Marketing andSales Practices Litigation. The MDL was created by Order of theUnited States Judicial Panel on Multidistrict Litigation onOctober 4, 2016. These cases concern the sale and marketing ofChinese-manufactured laminate flooring sold by defendant LumberLiquidators. Despite being marketed as sufficiently durable forresidential use, the Plaintiffs allege that their laminateflooring scratches too easily and fails to meet the advertisedindustry standard. In its October 4, 2016 Order, the MDL Panelfound that the actions in this litigation involve common questionsof fact, and that centralization in the Eastern District ofVirginia will serve the convenience of the parties and witnessesand promote the just and efficient conduct of the litigation. Allactions involve common factual questions regarding the durabilityof Chinese-manufactured laminate flooring sold by LumberLiquidators under the "Dream Home" label, particularly the issueof whether the laminates comply with the allegedly warrantedindustry standard for use in residential settings. Presiding Judgein the MDL is Hon. Anthony J. Trenga, United States DistrictJudge. The lead case is 1:16-md-02743-AJT-TRJ.

The multidistrict litigation includes a consolidated class actionlawsuit brought by the Court-appointed Plaintiffs' SteeringCommittee (PSC or Plaintiffs) on behalf of consumers and resellerdealerships. It also includes a lawsuit brought by the UnitedStates on behalf of the United States Environmental ProtectionAgency (EPA) against Volkswagen AG; Audi AG; Volkswagen Group ofAmerica, Inc.; Volkswagen Group of America Chattanooga Operations,LLC; Dr. Ing. h.c. F. Porsche AG; and Porsche Cars North America(the United States Action, Case No. 16-cv-295 (CRB)). The UnitedStates asserts claims arising under Section 203 of the Clean AirAct, 42 U.S.C. Section 7522.

After five months of negotiations supervised by a Court-appointedSettlement Master, the PSC and the United States filed a proposedConsumer and Reseller Dealer Class Action Settlement (theSettlement) and a Partial Consent Decree, respectively. Bothagreements involve Volkswagen AG, Audi AG, and Volkswagen Group ofAmerica, Inc. (collectively, Volkswagen) and concern the 2.0-literTDI engine vehicles (Eligible Vehicles). The Court preliminarilyapproved the Settlement on July 26, 2016 and entered its AmendedOrder on July 29, 2016.

The Court previously denied Fleshman Jr.'s motion to intervene toobject on behalf of all Virginia class members. Fleshman seeks tointervene as a matter of right to enforce Virginia's EPA-approvedState Implementation Plan (SIP), and he argues the Clean Air Act(CAA or Act) provides him an unconditional right to do so.Fleshman has also filed a Motion to Amend his Reply to his Motionto Intervene to submit a proposed amended complaint inintervention.

In his Order dated October 4, 2016 available athttps://is.gd/zgE7F4 from Leagle.com, Judge Breyer found thatFleshman has not shown that his proposed lawsuit in interventionseeks to enforce the same standard, limitation, or order as doesthe United States such that the CAA mandates his intervention andas to his motion for leave to depose the six Virginia ClassRepresentatives, the Court found that he has not shown thatdepositions are necessary to test the fairness and adequacy of theSettlement.

John Hanis is a former senior insurance underwriter for MetLife.He sued the Defendants, alleging that MetLife improperlyclassified him as exempt from the overtime requirements of theFair Labor Standards Act ("FLSA") and denied him overtime pay fortime worked in excess of 40 hours per week. Plaintiff has alsoraised a similar claim under the Missouri Wage Law.

The Court finds that the evidence in the case demonstrates that inhis position as an underwriter, the Plaintiff exercisedconsiderable discretion and independent judgment on matters ofsignificance in reviewing and analyzing the information necessaryto generate insurance quotes. Therefore, the Court finds thatMetLife has met its burden to show that Plaintiff meets the so-called second prong of the administrative exemption test. BecauseMetLife has shown that Plaintiff meets the salary requirement,performed work which was directly related to the general businessoperations of MetLife and that his primary duties included theexercise of discretion and independent judgment on matters ofsignificance, the Court finds that MetLife has demonstrated thatplaintiff is employed in a "bona fide administrative capacity" andis therefore exempt from paying overtime wages.

MICROCHIP TECHNOLOGY: "Schuman" Suit Alleges ERISA Violation------------------------------------------------------------PETER SCHUMAN, an individual, and WILLIAM COPLIN, an individual,on behalf of themselves and on behalf of others similarlysituated, Plaintiffs, v. MICROCHIP TECHNOLOGY INCORPORATED, acorporation; ATMEL CORPORATION, a corporation; and ATMELCORPORATION U.S. SEVERANCE GUARANTEE BENEFIT PROGRAM, an employeebenefit plan, Defendants, Case 4:16-cv-05544-DMR (N.D. Cal.,September 29, 2016), alleges that the Defendants failed to makegood of its promise that the U.S. Severance Guarantee Program(Plan) will be in effect, and that every employee terminatedwithout cause after a merger between Atmel and Microchip wouldreceive the severance payments guaranteed by the Plan. The casealleges violation of the Employee Retirement Income Security Act.

Mylan claimed that defendants Mayne Pharma Group Ltd. and WarnerChilcott plc made only miniscule changes to the acne drug Doryx tokeep generic competitors out of the market by forcing them to re-enter a lengthy regulatory process.

The district court sided with Mayne and Warner Chilcott, holdingthat the changes made to the drug were not anti-competitive. TheU.S. Court of Appeals for the Third Circuit on Sept. 8 upheld thatdecision.

In the court's opinion, Third Circuit Judge Julio Fuentes wrotethat the alterations made to Doryx didn't impede Mylan's abilityto compete in the generic market.

"While product-hopping under certain circumstances may be viewedas anti-competitive conduct, this is not one of those cases. Aswe explain, Mylan was not foreclosed from the market," JudgeFuentes said. "Doryx capsules were available for more than 20years, and generic companies were free to engineer their ownversions during that time."

The changes included switching Doryx from a capsule form totablets and putting grooves on the surface of 150 milligram pillsthat would allow patients to break them into two 75 milligrampieces. Later, the defendants added three grooves so the pillcould be split into thirds.

According to Fuentes, while Mylan did not consistently produce ageneric version of Doryx, it did receive 180 days of exclusiverights to do so, and it did so at higher prices than brand-nameDoryx.

"It is clear that Mylan reaped generous profits from its sale ofthe generic tablet, in the amount of $146.9 million," JudgeFuentes said. "Thus, far from being harmed by defendants' productchanges, Mylan was advantaged in the generic market by its 180-dayexclusivity period and ability to profit generously while raisingprices."

Judge Fuentes added later in the opinion, "Here, there were nopatent cliffs on the horizon, and the evidence demonstrates thatthere were plenty of other competitors."

Jonathan M. Jacobson -- jjacobson@wsgr.com -- of Wilson SonsiniGoodrich & Rosati in New York represented Mylan and referred arequest for comment to a Mylan representative for comment. Thatspokesperson declined to comment.

NATIONAL COLLEGIATE: "Jerrick" Files Suit Over Athletes' Safety---------------------------------------------------------------ROGER JERRICK, individually and on behalf of all others similarlysituated, Plaintiff, v. THE BIG TEN CONFERENCE, INC., a Delawarecorporation, and NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,Defendants, Case No. 1:16-cv-09485 (N.D. Ill., October 4, 2016),seeks to obtain redress for all persons injured by Defendant'salleged reckless disregard for the health and safety ofgenerations of University of Iowa student-athletes.

Defendant NCAA is the governing body of collegiate athletics thatoversees twenty-three college sports and over 400,000 students whoparticipate in intercollegiate athletics.

NATIONAL OILWELL: "Furniss" Suit Transferred to Texas-----------------------------------------------------ERIC FURNISS 16426 Mesa Point Dr. Houston, Texas 77095, on behalfof himself and all others similarly situated, v. NATIONAL OILWELLVARCO, L.P. c/o C T Corporation System 1999 Bryan Street, STE. 900Dallas, Texas 75201 Case No. 4:16-cv-02889 (July 27, 2016), wastransferred to the U.S. District Court for the Southern Districtof Texas from the U.S. District Court for the Southern District ofOhio. The case seeks to recover overtime pay under the Fair LaborStandards Act.

NATIONAL OILWELL VARCO, L.P. is one of the largest oilfieldservices companies in the world and provides drilling fluidproducts and services.

NATIONWIDE MUTUAL: 6th Cir. Finds Standing in Data Breach Case--------------------------------------------------------------Rajesh De, Esq. -- rde@mayerbrown.com -- Stephen Lilley, Esq. --slilley@mayerbrown.com -- and Joshua M. Silverstein, Esq. --jsilverstein@mayerbrown.com -- of Mayer Brown, in an article forMondaq, report that on September 12, 2016, the US Court of Appealsfor the Sixth Circuit held in Galaria v. Nationwide MutualInsurance Co., Nos. 15-3386/15-3387 (6th Cir. Sept. 12, 2016) thatthe plaintiffs in two related lawsuits properly alleged standingto pursue claims arising from a 2012 attack on the defendantinsurance company's computer network. The court's unpublishedopinion addressed two questions that are frequently litigated indata breach cases: whether the plaintiffs had alleged an injury-in-fact required for constitutional standing; and whether any suchalleged injury was fairly traceable to the acts of the defendantsand thus sufficient to establish the requisite causation. Thecourt decided both questions in favor of the plaintiffs. It didso over a dissent that concluded that it was unnecessary for thepanel to weigh in on the "existing circuit split regarding whetheran increased risk of identify theft is an Article III injury"because the plaintiffs had alleged no facts indicating that thecompany was responsible for the acts of third-party criminalhackers. Defendant has filed a petition asking the Sixth Circuitto review this decision en banc.

The plaintiffs' claims arose from an cyberattack on the company'scomputer network in which criminal hackers allegedly accessed theplaintiffs' personal information. The company responded to theincident by offering "a year of free credit monitoring andidentity-fraud protection of up to $1 million through a third-party vendor." The company also advised customers to set up fraudalerts and place security freezes on their credit reports, whilenoting that these steps could impede access to credit and/or costa small fee. The plaintiffs alleged that they took these stepsand thus had "expend[ed] time and money" as a result of the databreach.

Both plaintiffs filed putative class action complaints allegingnegligence and other claims. The Southern District of Ohiodismissed the claims, concluding, among other things, that theplaintiffs lacked Article III standing. In reaching thisdecision, the district court relied on Supreme Court decisions,such as Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013),holding that a plaintiff lacks standing when she merely alleges arisk of future harm that is not certainly impending. The districtcourt also recognized that courts, including the Third Circuit,have held that alleged "time and money expenditures" to mitigatethe risk of speculative future injuries are inadequate toestablish standing. E.g., Reilly v. Ceridian Corp., 664 F.3d 38,46 (3d Cir. 2011).

The Sixth Circuit reversed. The majority held that the"[p]laintiffs' allegations of a substantial risk of harm, coupledwith reasonably incurred mitigation costs, [were] sufficient toestablish a cognizable Article III injury at the pleading stage."It said that, because the plaintiffs' data had already beenstolen, there was "no need for speculation" that the plaintiffsfaced a substantial risk and were thus justified in taking actionto mitigate it. Defendant's letter to the plaintiffs and itsdecision to offer free credit monitoring services were cited asindicative of the "severity of the risk." The court concludedthat "[w]here a data breach targets personal information, areasonable inference can be drawn that the hackers will use thevictims' data for the fraudulent purposes alleged in Plaintiffs'complaints." The court noted that "[a]lthough [Defendant] offeredto provide some [risk mitigation] services for a limited time,Plaintiffs allege that the risk is continuing, and that they havealso incurred costs to obtain protections -- namely, creditfreezes -- that [Defendant] recommended but did not cover." Thecourt thus viewed the case not as one in which plaintiffs soughtto manufacture standing through incurring unreasonable mitigationcosts but rather as one in which the costs were "a concrete injurysuffered to mitigate an imminent harm."

The panel described this analysis of constitutional injury asconsistent with that of the Seventh and Ninth Circuits in Lewertv. P.F. Chang's China Bistro, Inc., 819 F.3d 963 (7th Cir. 2016);Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015);and Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010).The panel acknowledged that the "Third Circuit reached a differentconclusion in Reilly v. Ceridian Corp.," but found it distinctbecause the plaintiffs there had not alleged "the intentionaltheft of their data."

The panel went on to hold that the plaintiffs had adequately pledthe other two elements of Article III standing: causation andredressability. The court's decision was not recommended forpublication, meaning that it will not bind future Sixth Circuitpanels.

Judge Alice Batchelder dissented from the majority's finding thatthe plaintiffs had adequately pled a causal connection between thecompany's alleged conduct and their alleged injury, noting thatthe "plaintiffs make no factual allegations regarding how thehackers were able to breach [the company]'s system, nor do theyindicate what [it] might have done to prevent that breach butfailed to do." The dissent also concluded that the plaintiffs didnot allege causation sufficient to satisfy the second element ofArticle III standing because, "[i]n short, there is no allegationof fact in either complaint that makes plausible the notion that[Defendant] is at all responsible for the criminal acts thatincreased the plaintiffs' risk of identity theft." In otherwords, the alleged injury was a direct result of the criminalactions of a third party and not of the Defendant insurancecompany. Because the dissent found the causation element ofstanding not satisfied, it did not comment on "whether anincreased risk of identity theft is an Article III injury," butconcluded instead that it was not necessary for the court to "takesides in the existing circuit split" on that question.

As the Galaria dissent emphasizes, judicial consensus remainselusive as courts analyze standing in data breach litigation.While the impact of this unpublished opinion remains to be seenand the rehearing petition is pending, this decision confirms thatlitigation over Article III standing in data breach cases islikely to continue as judges evaluate how the concepts of injury-in-fact and causation apply in the wake of criminal attacks oncompany networks and systems.

NATIONAL COLLEGIATE: Charlie Wysocki Joins Concussion Class Action------------------------------------------------------------------Don Markus, writing for The Baltimore Sun, reports thatCharlie Wysocki, who left Maryland as its leading rusher in 1981,is part of a class action suit of 43 former college footballplayers against the NCAA and a variety of conferences and schoolsfor failing to protect the athletes from life-threateningemotional and neurological conditions caused by repetitiveconcussions.

In a suit filed in Indianapolis, Mr. Wysocki claims that the headinjuries he suffered while playing for the Terps led to along-term battle with depression and bipolar disorder.Mr. Wysocki lists the NCAA and the Atlantic Coast Conference asthe defendants.

"Certainly consequences of repeated head injuries can createconditions like depression and bipolar disorder and emotionalissues like that," said Chris Dore, a Chicago attorney whose firmis representing Mr. Wysocki and the other former athletes who arepart of the class action suit. "One of the conditions he'ssuffering from is depression."

Mr. Dore said in an interview on Oct. 6 that the University ofMaryland was not named in the suit because as a member of theUniversity of Maryland System, it is given state tort immunity.The handful of schools that were named in the suit were privateuniversities, Mr. Dore said.

"That is not to say they [Maryland] won't be involved in the case,state schools will not be involved," Mr. Dore said. "They will bethird parties who have relevant discovery and other information,but they don't get named in the same way."

A spokeswoman for the law firm representing the athletes said onOct. 6 that the suit is expected to grow shortly to as many as 50former athletes.

In his lawsuit, Mr. Wysocki said he is hoping "to obtain redressfor all persons injured by their reckless disregard for the healthand safety of generations of University of Maryland, College Park("University of Maryland") student-athletes."

Mr. Wysocki went on to claim in the lawsuit that the ACC and theNCAA, should have been more responsible caring for its athletes"but, unfortunately, Defendants ACC and the NCAA did not careabout the off-field consequences that would haunt their studentsfor the rest of their lives."

Mr. Dore said that Mr. Wysocki was not available for comment.

In a Sept. 1 story about Mr. Wysocki on ESPN's "The Undefeated"website, Mr. Wysocki said that he was diagnosed with bipolardisorder 27 years ago and had spent most of the ensuing yearseither homeless or hospitalized. It was not until Mr. Wysocki gotin touch with former Maryland teammate Dave Pacella 3 1/2 yearsago that he started to get his life back in some sort of order.

With the help of Mr. Pacella and another former teammate,Mark Sobel, Mr. Wysocki was able to stay out of hospitals andstart raising awareness for mental illness. He had a majorsetback in mid-June, when he was involved in a serious caraccident that left him with a number of injuries.

Mr. Sobel, who heads up Mr. Wysocki's medical team, said that hisformer teammate returned to the hospital after suffering from headtrauma, rib and vertebrae fractures, a lacerated kidney andspleen.

Mr. Wysocki had his best season at Maryland as a junior, when herushed for 1,359 yards and 11 touchdowns. His numbers dropped asa senior, when he rushed for 915 yards and seven touchdowns.Mr. Wysocki went undrafted by the NFL in 1982.

Mr. Wysocki was eventually passed as Maryland's leading rusher byLaMont Jordan.

While the court refused to allow a class-action claim to proceedin court, Nevsun said it would consider appealing a court decisionallowing three plaintiffs to bring forward a lawsuit regardingallegations of human rights abuses on Nevsun property.

The decision impacts every Canadian oil or mining firm operatinginternationally and places their project-level actions under themicroscope. The case will enter murky legal territory as the caseraises novel and complex legal questions, including oninternational law, which have never before been considered inCanada.

The TSX- and NYSE MKT-listed company stressed that the judgmentmakes no findings on the plaintiffs' allegations, includingwhether any of the actions amounted to human rights abuses takingplace at the Bisha mine.

The case involves three Eritrean workers alleging Nevsun wasinvolved in the Eritrean government's use of slave labor. Theplaintiffs argue they were forced to work at Nevsun's Bishacopper/zinc mine, in Eritrea.

Vancouver-based Nevsun said it was studying the court's decisionand considering an appeal of the decision that the action canproceed at all.

The Canadian court has been loath to enforce its jurisdiction totry Canadian companies for alleged criminal acts that took placein other countries.

Nevsun said it remains confident that its indirect 60%-ownedEritrean subsidiary, Bisha Mining Share Company (BMSC), operatesthe Bisha mine according to international standards of governance,workplace conditions, health, safety and human rights. Ithighlighted contractual commitments in place that strictlyprohibit the use of national service employees by BMSC'scontractors and subcontractors.

Previous Challenges

Nevsun is one of three Canadian mining companies that have hadcivil actions brought against them in Canadian courts over casesthat occurred in other countries.

TSX-listed HudBay Minerals faces three separate claims, whichinclude claims of rape and murder committed by security forcesacting on behalf of HudBay at Guatemala's Fenix mine, which itacquired through a merger in 2008 and sold in 2011.

Seven Guatemalans accused fellow TSX-listed miner Tahoe Resourcesof using excessive force with a private security force employed byTahoe at its Escobal silver mine when breaking up a violentprotest. In the Tahoe case, the British Columbia Supreme Courtdismissed the case, deferring the case to Guatemala courts. TheCCIJ has appealed that decision on the Guatemalan protestors'behalf.

That means nearly 150 taxing districts will have the choice ofremaining participants in the lawsuit, or opting out, Linn CountyCommissioner Roger Nyquist said.

Litigants were informed of Judge Murphy's decision during a statusconference call on Oct. 4, although the order had not been signedas of Oct. 6.

Judge Murphy said the class will include "Linn County and allother Oregon counties that conveyed forest lands to the State ofOregon pursuant" to state laws.

He also ordered the plaintiffs and defendants to cooperate in thepreparation of a proposed notice to class members and to presenttheir proposal to the court.

"We believe this means we are headed to a trial in early 2017,"Mr. Nyquist said. "It's a welcome development in our pursuit ofthe state's breach of contract. Most importantly, it's importantto rural communities all over Oregon."

Mr. Nyquist said the affected taxing districts can decideindividually whether they want to participate. For example, acounty may opt out of the lawsuit, but a fire district within thatcounty may decide to remain a participant.

"This is an asset to all of the taxing districts. The electedofficials and policy makers have a fiduciary responsibility to allof their citizens to pursue the inherent value of the contract tothem," Mr. Nyquist said.

In March, Mr. Nyquist and fellow commissioners John Lindsey andWill Tucker filed a breach of contract lawsuit seeking $1.4billion in past and future damages, naming as defendants theOregon Department of Forestry and the state of Oregon.

The commissioners contend that the state and the Department ofForestry have reduced timber sales on state forests and that thosereduced sales have meant a drop in revenue for affected countiesand taxing districts.

The lawsuit rests in large part on the definition of "greatestpermanent value." When the lands in question were conveyed to thestate, state officials said that the lands would be managed fortheir "greatest permanent value." At the time, the counties andother taxing jurisdictions believed that meant they'd be managedfor the largest sustainable timber harvest, the lawsuit claims.

Over the years, however, the state has expanded the definition of"greatest permanent value" so that it includes other factors aswell, such as wildlife protection, watershed enhancement projectsand recreation. As timber sales reduced, the amount of moneyfunneled back to the counties and other taxing districtsdiminished. The county's lawsuit charges that's a breach of theoriginal contract between the state and the counties.

Starting in the 1930s, the state began taking over mostlycut-over timber lands from counties throughout Oregon, because theprevious owners had failed to pay property taxes on them, creatinga financial burden for the counties.

Today, the state has more than 700,000 acres of forest lands. LinnCounty has the Santiam State Forest, which encompasses 47,871acres. Others are Clatsop State Forest, 136,000 acres in Clatsopand Columbia counties; Elliott State Forest, 93,000 acres in CoosCounty; Gilchrist State Forest, 70,000 acres in Klamath County;Sun Pass State Forest, 21,317 acres in Klamath County; andTillamook State Forest, 364,000 acres in Washington County.

Defendants operate a construction and painting business under thetrade name "SureGreen." SureGreen business offers constructionand painting services to clients throughout New York, Bronx,Kings, Queens, Richmond, and Westchester Counties.

The Plaintiff further moves the Court to stay the motion for classcertification and to grant Plaintiff (and Defendants) relief fromthe Local Rules setting automatic briefing schedules and requiringbriefs and supporting material to be filed with the motion.

To avoid the risk of a defendant mooting a putative classrepresentative's individual stake in the litigation, the SeventhCircuit in Damasco instructed plaintiffs to file a certificationmotion with the complaint, along with a motion to stay briefing onthe certification motion until discovery could commence. Damascov. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled,Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015).

As this motion to certify a class is a placeholder motion asdescribed in Damasco, the parties and the Court should not beburdened with unnecessary paperwork and the resulting expense whena one paragraph, single page motion to certify and stay shouldsuffice until an amended motion is filed, the Plaintiffs contend.

Debbie Krommenhock of Dublin, California, and Stephen Hadley ofMonterey, California, filed a class action complaint, on behalf ofthemselves and all others similarly situated, against Post FoodsLLC, requesting damages of more than $5 million. The complaint,filed Aug. 29 in the U.S. District Court for the Northern Districtof California, alleges violation of California's False AdvertisingLaw through deceptive advertising.

According to the complaint, the plaintiffs and class members werelured to purchase Post's products, centered mainly on packaginglabels advertising its cereals as healthy food choices to obscurethe dangers of added sugars.

The complaint is a gigantic 193 pages and includes pictures ofcereal boxes to demonstrate advertising and the products' labels.It contends the sugar used in Post's cereals caused the plaintiffsto suffer from unnecessary increased risks of metabolic syndrome,cardiovascular disease, diabetes, stroke and other chronicmorbidity. It alleges Post targets children and violates U.S.Food and Drug Administration (FDA) labeling requirements.

"The scientific evidence is compelling: Excessive consumption ofadded sugar is toxic to the human body," the lawsuit states."Experimentally sound, peer-reviewed studies and meta-analysesconvincingly show that consuming excessive added sugar -- anyamount above approximately 5 percent of daily caloric intake --greatly increases the risk of heart disease, diabetes, liverdisease and a wide variety of other chronic morbidity."

Naming more than 50 cereals in the lawsuit, the plaintiffs allegePost falsely represents its cereals are "healthy," "nutritious" or"wholesome," and that its cereals will "promote health, preventionof disease or weight loss." It also argues Post conceals dangersof added sugar by advertising its cereals with labels such as "NoHigh Fructose Corn Syrup" or "Natural Wildflower Honey."

The complaint argues the nation has seen a rise in human sugarconsumption, which produces cravings, withdrawals and chemicalchanges in the brain likened to those addicted to drugs such ascocaine and alcohol.

The plaintiffs allege Post knew, or reasonably should have known,that the challenged health and wellness claims were untrue ormisleading.

Michael Reese, attorney and food litigation lecturer, told LegalNewsline, "The Ninth Circuit ruled in William v. Gerber thatconsumers should be able to rely upon what's on the front of afood package and not drill down on the small print on the back toensure the claims are accurate. In other words, if you'remisleading consumers by the way you portray the front of thepackaging, regardless of the labeling on the back, that's notenough and it can be considered misleading."

Mr. Reese said the focus of the lawsuits is not as much aboutrequiring companies to educate consumers but in how they market aproduct to consumers.

"Marketing is a big part of it, most consumer protection claimsare based on affirmative misrepresentation claims," he said."There are circumstances where you can hold a company responsibleunder strict product liability. Especially with cereals, they arepresented as a health food."

Mr. Reese said it doesn't shock him that sugar is becoming a focalpoint. He said there are a number of books published that examinefood companies and how they are using sugar.

"There is something called the 'bliss point' referenced in MichaelMoss' book 'Sugar, Fat, Salt,' which is a term used by companiesto describe an optimal level of sugar, fat and salt that keeppeople wanting more of that product," he said. "It makes you wantmore, but you're never really satisfied. He compares thosetactics used to those used by tobacco companies."

Mr. Reese continued, "The FDA is taking a firmer stance on thissubject as well. There is a new nutrition fact panel coming outthat requires an additional line for added sugar. If you buyapple juice, for instance, you expect sugar to be a part of thejuice because apples are sweet, but companies add additionalsugar. That added sugar is not currently disclosed on the label."

The panel will break out how much sugar is actually added by thecompanies. Mr. Reese said he thinks it will be really beneficialto consumers.

"I think these are noble cases; like any consumer cases they areoften not the easiest, but that doesn't mean they shouldn't bebrought," Mr. Reese said. "Sometimes the greatest social changecomes from the hardest things to do. What I hope is that theindustry will wake up.

"I believe there are many good operators in the industry and wantto best serve their customers. We don't need sugar. Hopefullythey aren't putting more sugar in their products just to sell moreof it. I think good companies want complete transparency soconsumers know exactly what they're getting."

He said he believes it takes a class action to effect changerather than making changes first because every company isdifferent, but there are competitive pressures they all face.

"Class actions are good because they bring issues to theforefront," Mr. Reese told Legal Newsline. A company might beafraid to stick its neck out and change the way it does businessbecause they may get hurt, or a competitor may get a leg up onthem, but with public litigation in a public court, everyone comesunder scrutiny, and I think that's a good thing for all of us."

This action is not the only lawsuit Post and other cerealmanufacturers are facing for allegations of misleading marketing.At least three other lawsuits were filed against Post and othercereal firms alleging they falsely advertised their products were100 percent natural while they actually contained a chemical usedin weed killer called glyphosate.

They are represented by attorneys Jack Fitzgerald, Trevor M. Flynn-- trevor@jackfitzgeraldlaw.com -- and Melanie Presinger --melanie@jackfitzgeraldlaw.com -- of The Law Office of JackFitzgerald PC in San Diego.

The consumer class action has been brought by individuals whoallegedly suffered damages after purchasing and applying the OldSpice deodorant manufactured and sold by P&G. While the amendedcomplaint lists 13 separate Old Spice deodorant products asallegedly causing injury to consumers, Plaintiffs do not identifywhat Old Spice product any particular Plaintiff used. Instead,Plaintiffs allege generically that each purchased "Old SpiceDeodorants." Based on these asserted causes of action, Plaintiffsdemand a wide range of relief against P&G, including compensatorydamages, punitive damages, and various forms of injunctive relief.

Plaintiffs asked the Court to certify a nationwide class and 44state subclasses of every person who purchased one of the 13listed Old Spice deodorant products since 2012. Plaintiffsproposed nationwide class is defined as "persons in the UnitedStates who purchased for their own use Old Spice deodorant whichwas manufactured, produced, or supplied by Defendant between 2012to the present."

Plaintiffs assert nationwide claims for breach of expresswarranty, breach of implied warranty of merchantability, breach ofwarranty under the Magnusson-Moss Warranty Act, unjust enrichment,negligence/gross negligence, and certain common law productliability claims. Plaintiffs assert state statutory consumerprotection claims on behalf of 35 separate state subclasses.

In the motion, P&G argues that the Court should strike the classclaims because this case is a collection of individual productliability claims which are unsuited for class treatment.Plaintiffs argue that the case is at the earliest stages and thatthey have not yet been afforded the opportunity to conduct thenecessary discovery to support their allegations and class status.

In his Order dated October 4, 2016 available athttps://is.gd/XlSacm from Leagle.com, Judge Black concluded thatthere is no class maintainable based on the absence of allegedfacts to support a putative class under Rule 23(b)(1), (b)(2), or(b)(3), and based on the individualized issues posed byPlaintiffs' demand for monetary damages and that the unjustenrichment claim is precluded in many states because either P&G isa remote seller or the unjust enrichment is not a recognized causeof action.

However, at this stage in the litigation the Court affordsPlaintiffs the opportunity to cure their deficiencies. Plaintiffsare granted leave to amend the class allegations and disputedclaims within 21 days of the date of the Order.

In the certified class action for breach of contract, the Courtpreviously granted Plaintiff's motion for partial summary judgmentthat Defendant Safeway, Inc. breached its contract with classmembers who registered to shop online after 2006 "by charginghigher prices for groceries on its online Safeway.com deliveryservice than it charged in the stores where the groceries wereselected." The Court found that the terms and conditions ofSafeway's online contract with customers had promised, withcertain exceptions, that the prices charged on Safeway.com wouldbe the same as the prices charged in the physical store from whichthe groceries were selected and delivered. However, the Courtdenied Plaintiff's subsequent motion for partial summary judgmentregarding Safeway's liability to class members who registered toshop in the online store prior to 2006 because "Plaintiff had notmet its burden of demonstrating that class members who registeredprior to 2006 ever assented to the same Special Terms" as classmembers who registered after 2006.

After the Court denied Plaintiff's motion for partial summaryjudgment regarding pre-2006 liability, only one issue remained tobe tried: whether class members who registered for the deliveryservice prior to 2006 had agreed to the same contract as classmembers who registered after 2006. As a result, on February 3,2015, Plaintiff requested documents showing the Special Terms andregistration process in effect from 2001 to 2005. On April 7,2015, Safeway reported to Plaintiff that "as for the pre-2006Special Term and Registration documents, Safeway has not locatedany responsive documents."

Safeway responds that "no sanctions are warranted under Rule 26(g)because Safeway made a reasonable inquiry into the factual basisfor its discovery responses."

In his Order dated October 4, 2016 available athttps://is.gd/6YJMik from Leagle.com, Judge Tigar concluded thatSafeway's failure to search within the contents of the legacydrive constituted an unreasonable inquiry and that Safeway hasoffered no substantial justification for its violation of Rule26(g). However, the Court reduced by one-third resulting in a feeaward of $688,646 because a large portion of the subsequent workcompleted by Plaintiff's attorneys may have been avoided becausePlaintiff failed to follow up Safeway of its discovery obligationsto produce responsive documents.

SANOFI SA: Faces Various Suits Over Taxotere-Related Hair Loss--------------------------------------------------------------Amanda Bronstad, writing for Law.com, reports that more than 135lawsuits across the country allege that a leading chemotherapydrug has caused women undergoing treatment for breast cancer tolose their hair -- permanently.

The suits allege that Paris-based Sanofi S.A. and its subsidiariesfailed to warn that Taxotere could cause permanent alopecia, themedical term for hair loss. The suits come after the U.S. Foodand Drug Administration approved a labeling change on Dec. 11 towarn of the side effect.

"Now, having overcome breast cancer and the concomitantindignities of the disease as well as the treatment an all that itentails, movants -- and all women impacted -- are forced to livetheir lives with significant degrees of hair loss, forever," wroteChristopher Coffin and J. Kyle Bachus and Darin Schanker, whomoved on July 22 to coordinate all the cases before a singlejudge. Bachus & Schanker, based in Denver, filed the firstTaxotere case on Dec. 21.

"It was a pretty stacked docket," said Karen Barth-Menzies, a LosAngeles partner at Gibbs Law Group, which has filed four cases infederal courts in California over Taxotere. She said the hearingwas standing room only.

Ms. Menzies argued that the Taxotere cases should go before U.S.District Judge David Herndon of the Southern District of Illinois,a longtime MDL judge whose name also came up in arguments on Sept.30 over the talcum powder and Monsanto cases.

Messrs. Schanker and Coffin, of New Orleans-based Pendley, Baudin& Coffin, and Sanofi spokeswoman Ashleigh Koss and Jon Strongman,-- jstrongman@shb.com -- an attorney for Sanofi, did not respondto requests for comment.

Taxotere was approved by the U.S. Food and Drug Administration in1996 for use in treating patients with advanced or metastaticbreast cancer.

The suits allege that Sanofi and its subsidiaries, Aventis PharmaS.A. and Sanofi-Aventis U.S. LLC, knew about a 2005 study findingthat 9.2 percent of patients who took Taxotere had permanent hairloss. Also, a Denver oncologist in 2006 found that patients whohad taken the drug had a 6.3 percent increased risk of sufferingfrom permanent hair loss.

"We're still learning about what the company knew, but just frompublic documents it looks like they had been aware of or shouldhave been aware of it for many, many years," Ms. Menzies said.

The Denver oncologist's findings could be central to the case,wrote Strongman in an Aug. 16 filing. Mr. Strongman, a partner atShook, Hardy & Bacon in Kansas City, Missouri, wants the casescoordinated in Colorado, where the first lawsuit was filed, or inNew Jersey, where Sanofi-Aventis U.S. is based in Bridgewater.

The panel's decision would affect more than 85 lawsuits in federalcourts in 15 states. Another 50 women have sued in Missouri'sstate court in the city of St. Louis.

The Motion is granted to the extent that the action isconditionally certified as a collective action pursuant to Section216(b) of the Fair Labor Standards Act, with the plaintiff classdefined as "technical specialists working for SchlumbergerTechnology Corporation and/or Smith International Inc. over thepast three years who were paid a salary and job bonus."

In all other respects, the Motion is denied, Judge Hanna ruled.Judge Hanna also ordered that the Defendant will have 14 days fromthe date of the order to provide the Plaintiff with the names ofall potential members of the collective class. The parties willmeet, confer, and thereafter submit to the Court a joint proposednotice and consent forms no later than 21 days after the date ofthe order. If the parties are unable to agree on the content ofthe proposed notice and consent forms, the parties will telephonechambers and request a telephone status conference with the Court.

The potential class members may opt in to the collective actionif: (1) they have mailed, faxed, or e-mailed their consent form tocounsel for the class within 60 days after the notice and consentforms have been mailed, e-mailed, or posted; or (2) they show goodcause for any delay.

A copy of the Memorandum Ruling is available at no charge athttps://goo.gl/r63bpQ from Leagle.com.

SHERIDAN PRODUCTION: "Whisenant" Suit Stays in W.D. Okla. Court---------------------------------------------------------------District Judge Vicki Miles-LaGrange of the United States DistrictCourt for the Western District of Oklahoma denied Plaintiff'srenewed motion to remand the case captioned, TONY R. WHISENANT, onbehalf of Himself and all others similarly situated, Plaintiffs,v. SHERIDAN PRODUCTION COMPANY, LLC, Defendant, Case No. CIV-15-81-M (W.D. Okla.).

The action was filed on December 16, 2014, in the District Courtof Beaver County, State of Oklahoma, and stems from plaintiff'sallegations of defendant's prior underpayment or non-payment ofroyalties owed to plaintiff on natural gas and/or constitutes ofthe gas stream produced from wells in Beaver County, Oklahoma. OnFebruary 26, 2015, plaintiff initially filed his motion to remand,and on July 1, 2015, the Court denied plaintiff's motion to remandruling that defendant had satisfied the jurisdictionalrequirements under the Class Action Fairness Act of 2005 (CAFA).Specifically, the Court found that the undisputed damages of $3.7million along with the statutory 12% per annum interest onproceeds that were not timely paid, pursuant to the Production andRevenue Standards Act (PRSA), exceeded the $5,000,000.00jurisdictional amount required by CAFA.

On August 12, 2015, plaintiff filed his Notice of Appeal,appealing the Court's Order denying his motion to remand to theUnited States Court of Appeals for the Tenth Circuit. On October10, 2015, the Tenth Circuit issued its Order and Judgmentreversing this Court's Order and remanding this matter back to theDistrict Court for further proceedings, finding that the PRSA'sstatutory interest provision was the type of interest that 28U.S.C. Section 1332 prohibited the Court from considering.Further, the Tenth Circuit remanded the matter back to the Courtfor "a determination of whether any amounts other than interestunder Oklahoma's Production Revenue Standards Act may be added tothe alleged unpaid royalties to satisfy CAFA's amount-in-controversy requirement."

In the motion, Plaintiff contends that it is not appropriate toconsider statutory attorney fees when determining the amount incontroversy since his claim was not pled pursuant to the PRSA butis a common law breach of lease claim in which he seeks attorney'sfees out of the recovered damages amount.

In her Order dated September 23, 2016 available athttps://is.gd/VSz8Oz from Leagle.com, Judge Miles-LaGrange foundthat the matter should not be remanded back to state court sincedefendant has established by a preponderance of the evidence thatthe amount in controversy in this matter could exceed $5,000,000.It was reasonable for defendant at the time of removal todetermine that the amount in controversy would include damages upuntil the time the class was given notification, which wouldexceed the CAFA jurisdictional requirement of $5,000,000.

TOKAI PHARMACEUTICALS: "Doshi" Suit Transferred to D. Mass.-----------------------------------------------------------VAIBHAV DOSHI, Individually and on Behalf of All Others SimilarlySituated, Plaintiff, v. TOKAI PHARMACEUTICALS, INC.,JODIE POPE MORRISON, and LEE H. KALOWSKI, Defendants," Case 1:16-cv-11992-MLW (August 1, 2016), was transferred from the U.S.District Court for the Southern District of New York to the UnitedStates District Court for the District of Massachusetts.

The case alleges that Defendants made false and/or misleadingstatements, as well as failed to disclose material adverse factsabout its Phase 3 galeterone study, ARMOR3-SV, in violation of theSecurities and Exchange Act.

TOKAI PHARMACEUTICALS, INC. is a biopharmaceutical company focusedon developing and commercializing innovative therapies forprostate cancer and other hormonally-driven diseases.

UNILEVER UNITED STATES: Faces "Cruz-Acevedo" Suit in N.D. of Ca.----------------------------------------------------------------A class action lawsuit has been filed against Unilever UnitedStates Inc. The case is captioned Margaret Cruz-Acevedo,Individually on her own behalf and others similarly situated, thePlaintiff, v. Unilever United States Inc., a Delaware Corporation;Pepsico Inc., a North Carolina Corporation; and The Pepsi LiptonTea Partnership, the Defendants, Case No. 3:16-cv-05599-MEJ (N.D.Cal., Oct. 3, 2016). The case is assigned to Hon. Magistrate JudgeMaria-Elena James.

UNITEDHEALTH GROUP: Customers File Fraud Class Action in Minn.--------------------------------------------------------------Jef Feeley, writing for Bloomberg News, reports that someUnitedHealth Group Inc. customers claim the health insurerdefrauded them by setting up a system that secretly overchargedfor prescription drugs.

UnitedHealth customers made co-payments far in excess of the costsof actual drugs, sometimes paying $50 for a drug that cost theinsurer less than $15, according to a lawsuit filed on Oct. 4 inMinnesota.

UnitedHealth's overcharges were "improper and illegal" since theinsurer was already paid to provide prescription drugs throughhealth-insurance premiums, according to the complaint. Thelawsuit, which seeks class-action status on behalf of tens ofthousands of customers, also accuses the insurer of clawing backthe excess payments from pharmacies to improve its bottom line.

Pharmacy Benefits

UnitedHealth hasn't yet been served with the complaint, spokesmanTyler Mason said on Oct. 5.

"Pharmacy benefits are administered in line with the coveragedescribed in the plan documents," Mr. Mason said in an e-mail.It's not the first time UnitedHealth has been accused ofovercharging customers for prescription drugs. The Minnetonka,Minnesota-based insurer was sued in 2000 for allegedly forcingconsumers to hand over co-payments higher than specified by theirplan contracts.

UnitedHealth agreed to pay about $10 million to resolve theover-charging claims spanning a three-year period starting in1997. The insurer didn't admit wrongdoing as part of thesettlement, according to court filings.

The new case is Mohr v. UnitedHealth Group Inc., 16-cv-03352, U.S.District Court for the District of Minnesota.

UNIVERSAL HANDICRAFT: "Mollicone" Files Suit Over Adore Products----------------------------------------------------------------LISA MOLLICONE, on behalf of herself, all others similarlysituated, and the general public, Plaintiff, v. UNIVERSALHANDICRAFT, INC., d/b/a "Deep Sea Cosmetics" d/b/a "Adore OrganicInnovations;" and SHAY SABAG SEGEV, Defendants, Case 2:16-cv-07322(C.D. Cal., September 29, 2016), alleges that Plaintiff was misledby Defendants' advertising and labeling of the Adore Products andwould have not purchased the products if she would have known thatthe Products do not provide the touted anti-aging benefits.

UNIVERSITY OF DENVER: EEOC Files Suit Over Pay Disparity--------------------------------------------------------Karen Sloan, writing for Law.com, reports that the EqualEmployment Opportunity Commission on Sept. 30 sued the Universityof Denver, alleging its law school underpaid at least eight femalelaw professors compared with their male colleagues.

The agency in August 2015 issued a finding that the private lawschool had violated the Equal Pay Act, but the university said atthe time that it planned to mediate a resolution.

Those efforts failed, according to the suit, filed in U.S.District Court for Colorado. Last year, attorneys representing thelaw school's female professors said the university owed them asmuch as $1.2 million in back wages.

"The Commission was unable to secure from Defendant an agreementacceptable to the Commission through the conciliation process,"according to the complaint.

Officials from the university did not respond to calls forcomment.

Mary Jo O'Neill, head of the EEOC's Phoenix district office, saidthat enforcing the Equal Pay Act and closing the pay gap arepriorities for the commission. "The guarantee of equal pay forequal work applies to the professional academic setting of auniversity just the same as any other workplace," O'Neill said.University of Denver Sturm College of Law professor Lucy Marshfiled a complaint with the commission in 2013 after learning fromformer dean Martin Katz that she was the lowest-paid full-timeprofessor at the school, where she had worked since 1976. Theprevious year, Katz issued a memo outlining raise allocationsintended to keep salaries competitive that said female faculty onaverage earned salaries nearly $16,000 less than their malecolleagues.

At a subsequent meeting with at least five female law professors,Katz speculated that the pay disparity may be the result of thewomen "not performing as well as male full professors," thecomplaint alleges. Women make up 42 percent of the school's full-time faculty.

The commission concluded that in October 2013 the average salaryfor female full-time law professors at Denver was $139,940, whilemen earned an average $159,721 -- a difference of nearly $20,000and a "statistically significant amount," according to the suit.No female law professors earned salaries that were greater thanthe average among men, the commission found.

According to the suit, Ms. Marsh has been underpaid since shestarted at the law school, almost 40 years ago. She was hired asan assistant professor at a salary of $16,800, while a maleprofessor was hired in the same position the same year for$19,000, the suit alleges. By 2013, Marsh was earning $111,977 ayear, while that same male colleague made $75,000 more.

The university has previously attributed Ms. Marsh's lower pay toher job performance, including her teaching and scholarship. Herlawyers countered that Marsh was awarded the school's Excellencein Teaching award in 2010.

After the commission released its finding last year, theuniversity pointed to an independent consultant's report that lawschool faculty pay is based on current rank, performanceevaluations, administrative roles and age when a faculty member'scurrent rank was attained. Any links between pay and gender weretoo weak to draw conclusions, the consultant found.

The commission's suit seeks to enjoin the university from payingwomen lower wages, to pay back wages to female professors who havebeen underpaid, and recover punitive damages.

Plaintiffs Jacobo Juarez and Noel Velasco, individually and onbehalf of all others similarly situated, contend that they and theputative class are entitled to wages and benefits for workperformed on various public works projects under contract with NewYork City, New York State, and other government authorities.Plaintiffs contend that defendants compensated them at a lowerprevailing wage and benefit rate than plaintiffs were entitled toreceive for their work, and that defendants failed to payplaintiffs for all the hours worked.

The second amended complaint alleges that USA Roofing and Tribecaemployed plaintiffs to work on projects where Dean, Neelam,Olympic, Padilla, and Zoria were the general contractors. It isalleged that each contractor set work schedules, directed thework, and had substantial control over plaintiffs' workingconditions. It is alleged that the public works contracts requiredthe general contractors to oversee the performance of the work andto ensure that workers were paid prevailing wages and supplementalbenefits, including overtime wages. It is alleged that the generalcontractors failed to ensure that USA Roofing and Tribeca made theappropriate payments.

Plaintiffs move to certify the action as a class action pursuantto CPLR 901. They submit affidavits in support of classcertification.

Defendants argue that commonality and typicality are lacking inthe case, as plaintiffs do not have claims against all thedefendants.

Defendants' cross motions contend that plaintiffs destroyed orlost evidence which would have supported their claims.Accordingly, defendants argue, the court should determine thehours that plaintiffs allegedly worked, prohibit them fromsupporting any claims that they worked additional hours, striketheir second amended complaint, dismiss it as against alldefendants, and render judgment for defendants.

In the Order dated September 16, 2016 available athttps://is.gd/craBW7 from Leagle.com, Judge Singh found thatPlaintiffs fail to satisfy the numerosity requirement. They havenot shown that there are more than 25 members of the proposedclass and that joining them would be impracticable.

Plaintiffs allege that Defendant Valve Corporation, through itsvideo game Counter Strike Global Offensive (CSGO) "allowed anillegal online gambling market" through "its Steam platform." CSGOis a popular online video game that is the subject of weeklyonline gaming matches that are broadcast on television. Steam isValve's online marketplace where players can "list items for sale,buy games, buy items, and deposit money into their 'SteamWallet.'"

Plaintiffs allege that "Valve is aware that rigged third-partysites are taking money from Valve's teenage customers." Plaintiffsalso allege that Mr. Trevor Martin, a defendant and owner of CSGOLotto, "actively promotes Lotto as a gambling service" through hisYouTube channel, which "generates excitement." Plaintiffs contendthat Mr. Martin's alleged failure to disclose that he was apartial owner of CSGO Lotto means that he "rigged the results" ofgames played on CSGO Lotto. With respect to damages, Plaintiffsallege that they lost the value of their Skins, but they "knew"they could "cash out" the value of their Skins "for real moneyprior to losing them while gambling."

On August 16, 2016, Plaintiffs filed an amended class actioncomplaint. The Plaintiffs allege their class action is properunder Federal Rule of Civil Procedure 23. The class includesindividuals "who (1) purchased Skins and/or (2) areparents/guardians of a minor child who has purchased Skins." Theamended complaint alleges ten different statutory and common lawviolations, some including dozens of individual state lawviolations, but contains only one federal claim: violations of theRacketeer Influenced and Corrupt Organizations Act (RICO), 18U.S.C. Section 1962.

On September 1, 2016, Defendants CSGO Lotto and Mr. Martin filed amotion to dismiss the first amended complaint pursuant to FederalRule of Civil Procedure 12(b) for lack of personal jurisdiction,lack of subject matter jurisdiction, and failure to state a claim.

In his Order dated October 4, 2016 available athttps://is.gd/yt6rlI from Leagle.com, Judge Coughenour concludedthat (1) Plaintiffs have failed to allege concrete injury for RICOstanding; (2) diversity jurisdiction under 28 U.S.C. Section 1332is unavailable because there is not complete diversity ofcitizenship between Plaintiffs and Defendants; (3) the Court doesnot have jurisdiction over the state law claims under CAFA becauseCAFA jurisdiction was never alleged in the amended complaint; and(4) having dismissed Plaintiffs' RICO cause of action, and findingno CAFA jurisdiction, lacks federal subject matter jurisdictionover these state law claims under 28 U.S.C. Section 1331.

VALVE CORP: Players Can Still Appeal CS:GO Class Action Dismissal-----------------------------------------------------------------Ben Barrett, writing for PCGames, reports that the CS:GO gamblingscandal rolls ever onward, with lawsuits now reaching the rulingsstage. The first major decision has been made in the combinedclass action suing of YouTuber TmarTn and Valve by a group ofdisgruntled players, and it's a win for Valve. The case has beendismissed at a federal court on jurisdictional grounds. Whilethis doesn't mean the case is dead, it does require arestructuring from Michael John Mcleod et al.

The short version is that the federal court decided the RICOelements of the case -- i.e. why it was being brought to federalcourt in the first place -- didn't stand up, and thereforedismissing it. There's an appeal opportunity to go through, butif that's unsuccessful it means state courts will have to be usedif the plaintiffs want to continue.

The major impacts of this decision are financial. RICO trialshave special rules for who pays for the time of lawyers oncethey're finished, and mean things could have been a lot cheaperfor the side of the case that isn't multi-national corporationsand YouTube superstars. However, as mentioned, the case cancontinue in other courts if wished.

Acting on behalf of all those who acquired Vertex stock during theperiod in which the overstatement stood uncorrected, Local No. 8IBEW Retirement Plan & Trust (Local No. 8) filed the securitiesfraud class action complaint against Vertex and six past andcurrent Vertex employees.

During the course of clinical trials for an experimental drugcombination intended to treat a fatal lung disease, Vertexannounced interim results that overstated the improvement in lungfunction exhibited in a group of patients receiving thecombination treatment. Following this announcement, Vertex's stockprice rose from $37.41 per share to close at $64.85 three weekslater. It then lost some of its gain, dropping to $57.80, afterVertex corrected the initial release's overstatement.

The defendants moved to dismiss for failure to state a claim, seeFed. R. Civ. P. 12(b)(6), arguing that the facts alleged in thecomplaint fail to generate a strong inference that the defendantsacted with the mental state required to render them liable undersection 10(b) and Rule 10b-5. The district court dismissed thecomplaint, finding that it failed to create a strong inferencethat the defendants had acted with scienter, the requisite mentalstate.

On appeal, Local No. 8 argues that the complaint adequatelyalleges facts making it as likely as not that the defendantsrecklessly turned a blind eye to an obvious danger that theannounced interpretation of the initial results was wrong.

In his Order dated October 3, 2016 available athttps://is.gd/0HBrZu from Leagle.com, Judge Kayatta concluded thatthe Court properly dismissed the matter, holding that theallegations underlying Local No. 8's claim that the defendantsacted with scienter fall short of what Congress demands in thesecurities fraud context. Because the remaining claims arederivative of its section 10(b) and Rule 10b-5 claim, it followsthat the district court properly dismissed the former, the AppealsCourt said.

In his Opinion and Order dated October 3, 2016 available athttps://is.gd/equtVk from Leagle.com, Judge Gotsch, Sr. found thatWestfield's counterclaim is redundant and unwarranted. The Court,however, will afford Westfield sufficient time to amend itsproposed answer and affirmative defenses to ensure that itspleadings are complete.

Plaintiffs initiated the class action under 42 U.S.C. Section9601, the Comprehensive Environmental Response, Compensation, andLiability Act (CERCLA), with its original complaint on October 27,2009. On April 18, 2011, Westfield filed a separate complaint fordeclaratory judgment seeking a declaration that it owed no duty todefend or indemnify Kenneth R. Will (Will), VIM Recycling, Inc.(VIM), and K.C. Industries, LLC (KCI), against a state courtlawsuit against them. In Westfield's 2011 Dec Action, the Courtfound that Westfield has no duty to defend or indemnify Will, VIM,or KCI against the state court lawsuit.

On November 24, 2015, the Court then entered default judgment inthe instant action against VIM and KCI for $50,568,750 and awardedlitigation costs in the amount of $273,399.85 against Will, VIM,and KCI. On May 23, 2016, Plaintiffs filed their Verified Motionfor Proceedings Supplemental to Execution (Motion for Pro Supp)that sought, among other things, to attach four insurance policiesissued by Westfield to VIM, KCI, and Will.

Westfield filed the Motion for Pleadings based on its assertionthat it has no duty under its policies to defend and indemnifyVIM, KC, and Will against Plaintiffs' claims; and that it is notliable under its policies to pay any of the judgments against VIM,KC, and Will.

In their response brief, and later at the motion hearing,Plaintiffs indicated that they do not oppose Westfield's requestto file an answer and affirmative defenses, but that they doobject to Westfield's request to file the proposedcounterclaim/cross-claim for declaratory judgment.

VOLKSWAGEN AG: James Liang Indicted in Emissions Scandal--------------------------------------------------------Edward J. Heath, Esq. -- eheath@rc.com -- and Kelly Frye Barnett,Esq. -- kbarnett@rc.com -- of Robinson & Cole, in an article forThe Connecticut Law Tribune, report that on Sept. 9, the U.S.Department of Justice publicly announced the indictment and guiltyplea of James Liang, the first Volkswagen executive to be chargedin connection with the company's ongoing emissions scandal. Theplea was entered on the one-year anniversary of the DOJ's releaseof the so-called Yates Memo, which sent a stern warning to thebusiness world that company executives were now more likely to beheld individually accountable for criminal and civil liabilityarising from corporate misconduct. Even at this early stage inthe government's investigation of Volkswagen, the prosecution ofLiang reflects the DOJ's commitment to the philosophy of the YatesMemo and reveals some practical guidance for lawyers and otherpersonnel responsible for corporate compliance.

The Yates MemoNamed after its author, Sally Quillian Yates, deputy attorneygeneral of the United States, the Yates Memo is the most recentarticulation of the DOJ's approach to investigating and resolvingallegations of corporate misconduct. Its philosophy iscrystallized in six steps that assistant U.S. attorneys shouldtake in the course of handling investigations, and it places aheavy emphasis on individual accountability. It instructs DOJlawyers to focus on individual criminal and civil liability fromthe inception of the investigation, and it directs that anysettlement with a target company should not include a release ofculpable directors, officers, or employees "[a]bsent extraordinarycircumstances."

The Yates Memo takes the position that culpable employeesgenerally should not be allowed to escape liability to thegovernment by hiding behind the corporate form, but it also can beread to urge DOJ lawyers to use individual employee liability asleverage to obtain a more favorable settlement from the targetcompany. In articulating this strategy, the Yates Memo did notbreak new ground as much as it confirmed an evolving federaltrend, of which the prosecution of Liang is the latesthigh-profile example.

Liang's ProsecutionNews of Volkswagen's emissions crisis broke in September 2015,mere days after the Yates Memo was issued. It has become one ofthe most significant ongoing government investigations in thecountry, if not the world. At the core of the crisis is a decade-long conspiracy perpetrated on consumers and environmentalregulators worldwide to use software in its vehicles tofraudulently defeat emissions testing.

Mr. Liang has now admitted to being a key figure in that criminalconspiracy. His employment with Volkswagen AG began in 1983 andfocused on diesel development at the company's facilities inWolfsburg, Germany. The DOJ has alleged that Mr. Liang and othercompany personnel realized that they would not be able to design adiesel engine that would meet both U.S. emissions standards andcustomer expectations. Mr. Liang and other company employeesthereafter designed software or a "defeat device" that was to beinstalled in each vehicle. When the software detected emissionstesting, the vehicle would perform in a mode that satisfiedstandards. Otherwise, the emissions control systems were scaledback, causing the vehicle to emit significantly higher amounts ofnitrogen oxide pollutants, sometimes 40 times greater than U.S.standards.

In 2008, Mr. Liang moved to California as Volkswagen's leader ofdiesel competence. While in that role, Mr. Liang and otherco-conspirators allegedly met with federal and state environmentalregulators on several occasions to seek the certificationsrequired to sell to U.S. customers the vehicles fitted with thedefeat devices. Mr. Liang has admitted that during some of thesemeetings he and his co-conspirators knowingly misrepresented thatthe vehicles complied with emissions standards and intentionallyhid the existence of the defeat devices.

Consistent with the Yates Memo, Mr. Liang was indicted under sealwhile the government and Volkswagen were involved in ongoingsettlement negotiations. According to counsel for Mr. Liang, heis "one of many" at Volkswagen involved in the scheme, and itappears that he has been cooperating with the government'sinvestigation. Approximately a month after Liang was indicted,Volkswagen reached a settlement with the DOJ under which itadmitted wrongdoing and agreed to pay $15.3 billion to itscustomers and regulators.

The settlement left open the possibility of criminal charges.Yates has since confirmed that the DOJ is looking at "multiplecompanies and multiple individuals" in this investigation. Liang'sindictment may be the first of many to follow.

Compliance Warning SignsIt remains unclear whether and to what extent Volkswagen employeesin supervisory or compliance roles may have been aware of thecriminal conspiracy to which Mr. Liang has admitted. But hisindictment and numerous media reports suggest that others may havebeen in a position to observe warning signs.

For example, a civil lawsuit filed in federal court in New Jerseylast year cites German and French newspaper reports for theallegation that Robert Bosch GmbH, a business that suppliedsoftware and components to Volkswagen, warned the company in a2007 letter that it would be illegal to use the emissions softwarein vehicles sold to U.S. consumers.

Other media reports indicate that one or more Volkswagentechnicians may have warned the company in 2011 about concernsregarding emissions testing practices.

In 2012, West Virginia University received a private grant toperform emissions tests on a variety of diesel vehicles in theU.S. WVU tested two Volkswagen diesel cars, which repeatedlyfailed to match the company's marketing hype. That testing datawas first presented at an industry conference in 2014 and waslater provided to federal and state regulators, whoseconfrontation of Volkswagen was initially met with denials.

The indictment of Liang does not refer to any of those mediareports or to the third-party testing, but it does rely heavily onincriminating internal emails exchanged between Volkswagenemployees in response to their dealings with regulators.

Referring to an engine at issue, one employee wrote in 2015, "Wemust be sure to prevent the [California] authority from testingthe Gen 1!" An email also noted that if the Gen 1 engine weretested by regulators, "then we'll have nothing more to laughabout!!!!!" One Volkswagen employee sent Mr. Liang and others anemail in 2015 seeking input on how to respond to regulators,stating (in German): "The key word 'creativity' would be helpfulhere." Another employee email stated, "We 'only just need aplausible explanation' as to why the emissions are still high!!!"Avoiding the Crisis

The scant information and allegations available to the publicabout the Volkswagen crisis already reveal some practical guidancefor lawyers and other company personnel responsible for corporatecompliance.

It is important for lawyers and compliance personnel to be "on theground" with company employees to the extent reasonablypracticable, particularly with regard to employees involved incompany initiatives that are subject to heavy regulation.

Fostering a close and trusting working relationship with employeeshelps to maintain an open line of communication to share concerns,even those that come from outside of the company, such as fromvendors or at industry conferences.

Lawyers and compliance personnel should also consider educatingcompany employees about the internal and external risks ofnoncompliance, including the DOJ's avowed commitment to pursuingindividual liability, and the company's existing reportingchannels and whistleblower protections.

Regulators expect that supervisory and compliance personnel willswiftly respond to indications of possible employee misconduct.Acquiring the information necessary to make informed judgments isoften challenging, but, as the emails cited in Mr. Liang'sindictment strikingly illustrate, reviewing employee emails can bean effective investigation starting point, even before anyemployees are questioned. Although the primary mode ofcommunication among employees in most companies, emails,unfortunately, are often sent with little or no forethoughtdespite their permanence and likelihood of ending up as evidencein criminal and civil cases. That initial step of email reviewtypically can be performed remotely through the company's ITdepartment and without advising the targeted employees of thereview. If the volume of email generated by the employees is toogreat to review in short order, as will almost certainly be thecase, keyword terms can be searched to expedite the review.

This kind of relationship building, internal education, andmonitoring efforts are burdensome and time-consuming but, asVolkswagen's woes have already demonstrated, the cost ofcompliance is always less than the cost of a crisis.

Edward Heath is a Robinson & Cole partner who chairs the firm'sBusiness Litigation Group and leads its GovernmentInvestigations, Corporate Compliance, and Criminal Defense Team.

Kelly Frye Barnett, an associate in the firm, is a member of theBusiness Litigation Group and the Government Investigations,Corporate Compliance, and Criminal Defense Team.

The case is a putative class action aimed at challenging thelegality of certain impact fees imposed by the Washington CountyWater Conservancy District. The case was filed by a group ofproperty owners who paid impact fees -- a "water availabilitycharge" -- to the District within a specific time period. Theplaintiffs claim that the impact fees run afoul of the Impact FeesAct, UTAH CODE Section 11-36a-201 to -205, and amount to a takingunder the Utah and United States Constitutions.

The District defends its impact fees by asserting that they werebased on a "level of service" standard imposed on the Districtthrough a minimum source capacity standard adopted by the UtahDivision of Drinking Water (DDW). It asserts that the adoption ofthe level of service standard is a "legislative" judgment thatsurvives scrutiny under the Impact Fees Act and constitutionaltakings provisions.

The trial court endorsed the District's position in a decisiongranting its motion for partial summary judgment. In granting thatmotion, the court held "that the Level of Service adopted by andfor the purposes of the District's 2006 Capital Facilities Planand Impact Fee Analysis based upon a standard established by theDDW was legal and reasonable as a matter of law." In addition,pursuant to a stipulation of the parties, the court certified thecase for an immediate appeal under Utah Rule of Civil Procedure54(b) concluding that "a determination of the critical thresholdissue at the appellate level would be the most efficient use ofjudicial resources" and accordingly found "that there was no justreason for delay."

On appeal, the parties contend that the standard is met. Theyclaim that the input on the reasonableness or legality of theDistrict's "level of service" standard will advance the timelydisposition of the case and that the district court's decisionimplicates threshold "principles of law" that will serve as a"necessary foundation" on which further proceedings will be based.

In his Opinion dated October 3, 2016 available athttps://is.gd/FwfkXe from Leagle.com, Judge Lee dismissed the casefor lack of jurisdiction because the case was not properlycertified under Rule 54(b) and declined to resolve threshold"principles of law" concluding that the issues on the merits areinsufficiently presented on the briefs and record on appeal.

WELLS FARGO: House Wants CEO to Undo Forced Arbitration Clause--------------------------------------------------------------Kery Murakami, writing for CNHI Washington, reports that duringhours of tongue-lashing by members of a House committee two weeksago, Rep. Brad Sherman, D-Calif., pressed Wells Fargo's CEO toundo a requirement imposed by many banks that prevent customersfrom being able to sue.

"Some of them want their day in court," Mr. Sherman said of WellsFargo customers who cannot file class-action lawsuits against thebank for opening fake accounts in their names.

"Are you going to hold them to their forced arbitration and screwthem out of that?" he said.

"I believe in arbitration. I think it's a fair way . . .," saidthe Wells Fargo banker, John G. Stumpf, who was testifying beforethe House Financial Services Committee, before he was interrupted.

"Will you let them go to court if they want to go to court? Yes orNo?" Mr. Sherman said later in the exchange.

"No but with an explanation," said Mr. Stumpf, before he was cutoff again.

The controversy over millions of fake accounts opened by WellsFargo is reigniting debate over a clause commonly included inbanking agreements, in which customers agree not to file class-action lawsuits.

While banking groups say the clauses push disputes to cheaper andquicker arbitration, others including Ohio Sen. Sherrod Brown, theranking Democrat on the Senate banking committee, said preventingwronged customers from going to court takes away their ability tobe "made whole" and "prevent cases like this in the future."

A federal judge in California last September agreed with WellsFargo when ruling that Shahriar Jabbari cannot file suit on behalfof himself and other Wells Fargo customers because of the clause.

Mr. Jabbari, according to court documents, opened a checking and asavings account at Wells Fargo in 2011. Upon going to a branch inLos Gatos, California, to check on an unauthorized charge, hediscovered he had seven accounts.

The fake accounts were opened using his forged signature. One evenmisspelled his first name.

Mr. Jabbari said his credit rating dropped and he got calls fromdebt collectors because of fees he racked up in the accountsopened without his knowledge.

The latest controversy over bogus accounts isn't the only oneWells Fargo has tried to keep in arbitration.

Bank attorneys in September asked for three federal class-actionlawsuits in Florida alleging excessive overdraft charges be thrownout because of the arbitration clause.

Sen. Brown said that he'll soon introduce a bill allowing WellsFargo customers to sue the bank for opening fake accounts, even ifthey've signed the arbitration agreements.

Minnesota Attorney General Lori Swanson also turned up the heat,writing to Mr. Stumpf on Oct. 4 to urge him not to enforce theprohibition against customers filing a class-action lawsuitagainst the bank.

The controversy could have broader implications, banking expertssaid.

It could bolster a ban on the clauses proposed by the ConsumerFinancial Protection Bureau, said Quyen Truong --qtruong@stroock.com -- a former deputy counsel at the bureau andnow a partner at Stroock & Stroock & Lavan LLP, in an interview.

Consumer groups say the clauses are stacked in the favor of banks.

A study last year by the consumer bureau said bank and credit cardcustomers generally don't realize they've given up their rights tofile class-action lawsuits.

However, its proposal, which could be implemented early next year,has been controversial. It drew more than 6,000 comments,including opposition from banking groups that say defendingthousands more lawsuits will cost billions of dollars.

In its study, CFPB said larger banks are more likely to includethe clause in contracts than smaller ones.

According to a Pew Charitable Trusts study last year, nearly two-thirds percent of the nation's top 45 banks had such clauses, upfrom more than half in 2013.

In a letter to CFPB supporting the proposed ban on arbitrationcauses, the group Consumer Action noted some key differencesbetween arbitration and class-action cases.

Customers ability to get access to documents is more limited inarbitration, which can "make the proceedings one-sided and veryunfair to customers," it said.

Arbitrators, unlike judges, are not required to follow legalprecedent or explain their decisions.

Nor do they have power to order a business to stop unfairpractices. Because the proceedings are confidential, regulatorsand the public cannot find out about the actions for which acompany is being challenged, the group said.

"This forced arbitration system helps hide fraudulent schemes suchas the sham accounts at Wells Fargo from the justice system, fromthe news media, and from the public eye," wrote Sen. Brown alongwith Massachusetts Sen. Elizabeth Warren and five other Democraticsenators in a Sept. 23 letter to Mr. Stumpf, urging him to dropthe clause.

Wells Fargo in a statement said the bank is working to "makethings right" by ensuring its customers do not have any product orservice they did not authorize. It is offering free mediation toresolve any disputes.

In a joint letter to CFBP that opposes the ban, the AmericanBankers Association, Consumer Bankers Association and FinancialServices Roundtable said getting rid of the arbitration clausewould lead to 6,042 additional class-action lawsuits in the nextfive years, at an "unprecedented and staggering" cost to banks ofbetween $2.62 billion and $5.23 billion.

Arbitration, the groups said, is a faster, cheaper way to settlesuits.

Consumers are the ones who will "truly suffer" from the proposedrule, the financial associations argued. Adding thousands morecases will clog the courts for all kinds of cases.

"As taxpayers, they will pay for the increased costs to the courtsystems required to handle the permanent surge of 6,042 additionalclass actions every five years," they said.

* Second Circuit Clarifies Law for Consolidated Cases-----------------------------------------------------Mark Hamblett, writing for New York Law Journal, reports that theU.S. Court of Appeals for the Second Circuit has clarified the lawon when the dismissal of a single case among several consolidatedcases can be considered a final, appealable decision.

* Study Says More Opt-Outs Likely in Big Class Action Settlements-----------------------------------------------------------------Jonathan Stempel, writing for Reuters, reports that largersecurities class-action settlements are more likely than smallersettlements to have at least one plaintiff "opt out" and go italone, a study released on Oct. 6 shows.

From 1996 to 2014, at least one party decided not to participatein 48 out of 1,458 U.S. settlements reviewed, or 3.3 percent,according to the study by Cornerstone Research and the law firmLatham & Watkins.

Asbestos Litigation

ASBESTOS UPDATE: Magistrate Judge Favors Dismissal of "Suoja"-------------------------------------------------------------On December 29, 1996, Oswald "Ozzie" Suoja died from mesothelioma,a form of cancer closely associated with asbestos exposure. Thereis no dispute that exposure to asbestos caused Suoja's illness: hehad a 40-year career as a union asbestos worker during which heworked with numerous asbestos-containing products. In 1999,Suoja's wife filed a lawsuit against defendant Owens-Illinois,Inc. on her own and Suoja's behalf. She later was replaced asplaintiff by their son Gary, who is administrator of Suoja'sestate. The lawsuit asserts causes of action for negligence andstrict liability based on the fact that from January 1948 andApril 30, 1958, Owens-Illinois manufactured and sold an asbestos-containing pipe insulation called "Kaylo." Plaintiff alleges thatSuoja was exposed to asbestos dust from this particular productwhile doing pipe insulation and repair at the Badger OrdnanceWorks in Sauk County, Wisconsin, that this exposure was asubstantial cause of his mesothelioma, and that defendant iseither strictly liable or negligent for including asbestos in itsinsulation product and/or failing to warn Suoja that workingaround dust from Kaylo would expose him to an unreasonable risk ofharm.

The Plaintiff's suit was originally assigned to District JudgeBarbara Crabb. In September 1999, the Judicial Panel onMultidistrict Litigation ordered the case transferred to theEastern District of Pennsylvania for pretrial proceedings, whereit remained until it was remanded back to Judge Crabb in January2014. After a number of unsuccessful motions by defendant todismiss the case, the parties withdrew their jury demands andconsented to magistrate judge jurisdiction over a bench trial.

Magistrate Judge Stephen L. Crocker of the United States DistrictCourt for the Western District of Wisconsin held a bench trial onNovember 30 to December 2, 2015, allowing the parties virtuallyfree rein to present evidence with the understanding that theywould be able to raise evidentiary objections in post-trialbriefs. Following the trial, the parties submitted post-trialbriefs, including numerous evidentiary objections, and responses.The case now is before the court for findings of fact andconclusions of law pursuant to Fed. R. Civ. P. 52.

After examining the entire record, considering the arguments ofcounsel, and determining the credibility of the witnesses,Magistrate Crocker finds that the plaintiff has failed to meet hisburden of showing by the greater weight of the credible evidencethat Suoja was exposed to Kaylo at Badger Ordnance. Further, evenif Suoja might have been exposed to Kaylo at Badger Ordnance, theplaintiff has not met his burden of showing that any such exposurewas a substantial cause of Suoja's mesothelioma. Having failed toprove key elements of his claims of strict liability andnegligence, the plaintiff cannot prevail. Therefore, MagistrateCrocker said he is entering judgment for defendant and dismissingthe plaintiff's case.

The case is GARY SUOJA, Individually and as Special Administratorof the Estate of OSWALD SUOJA, Deceased, Plaintiff, v. OWENS-ILLINOIS, INC., Defendant, No. 99-CV-475-slc (W.D. Wis.). A full-text copy of Magistrate Crocker's September 30, 2016 Opinion andOrder is available at https://is.gd/JpufJp from Leagle.com.

ASBESTOS UPDATE: Claims vs. Puget in "Johnson" Dismissed--------------------------------------------------------Judge Edward M. Chen of the United States District Court for theNorthern District of California issued an order granting thedismissal, with prejudice, of any asbestos exposure claims on orafter December 15, 1980, as to Defendant Puget Sound CommerceCenter, Inc., fka Todd Shipyards Corporation, in the casecaptioned MARCELLA JOHNSON, as Successor-in-Interest to and asWrongful Death Heir of RICHARD JOHNSON, Deceased; and DEVINJOHNSON, TIFFANEY JOHNSON, as Wrongful Death Heirs of RICHARDJOHNSON, Deceased, Plaintiffs, v. GEORGIA-PACIFIC LLC (FKAGEORGIA-PACIFIC CORPORATION), et al., Defendants, No. 3:15-cv-02664-EMC (N.D. Calif.).

A full-text copy of Judge Chen's September 30, 2016 Order isavailable at https://is.gd/AuJhEt from Leagle.com.

ASBESTOS UPDATE: Md. Federal Court Denies Bid to Remand "Rhodes"----------------------------------------------------------------In the case captioned ESTHER RHODES, as Surviving Spouse andPersonal Representative of the Estate of Earl J. Rhodes, deceased,et al., Plaintiffs, v. MCIC, INC., et al., Defendants, Civil No.JKB-16-2459 (D. Md.), Judge James K. Bredar of the United StatesDistrict Court for the District of Maryland denied the Plaintiffs'motion to remand or, in the alternative, for severance of allclaims other than the Plaintiffs' claims against Crane Co. and toremand all other severed claims.

The Plaintiffs, who are surviving family members of Earl J.Rhodes, deceased, filed their complaint against 32 Defendants inthe Circuit Court for Baltimore City. The case has been removedto the Maryland District Court by Crane Co. pursuant to 28 U.S.C.Section 1442, which permits removal to federal court for casesinvolving the "federal officer defense."

In their motion to remand, the Plaintiffs argue the federalofficer defense has not been established. They fault Crane Co.because it provides no evidence to support its allegation thatPlaintiff Earl Rhodes was exposed to Crane Co.'s asbestos-containing products while serving in the Navy at a jobsite wherethe products were being used, installed and/or replaced and thatthe products and its labeling/packaging were under the completeand direct control of the federal government. Judge Bredar heldthat given the dearth of specific allegations in the Plaintiffs'complaint regarding any specific product of any particularDefendant, the Court cannot fault Crane Co. for not providing thekind of specificity desired by the Plaintiffs. Crane Co. isclearly anticipating that the course of discovery may flesh outwhat are now, at best, the Plaintiffs' conclusional allegations,the judge said.

Judge Bredar added that the Plaintiffs also assert, with nofactual support, that "the Navy did not exercise any control overwarnings and exercised no discretion over warnings relating toCrane Co.'s products which were supplied to the Navy." In fact,Crane Co. has provided ample support for the proposition in itsNotice of Removal and in the affidavits supplied therewith to theeffect that the Navy exercised strict control over the inclusionor affixing of warnings to any product of any kind supplied to theNavy, the judge pointed out.

The Plaintiffs also contend that Crane Co. made no assertion orprovided proof that it warned the Government about possibleasbestos hazards from its products. They further contend thatCrane Co. has not provided argument that the federal governmenthad sufficient knowledge about its knowledge of asbestos hazards,that the Navy prohibited or limited Crane Co. from providingwarnings about asbestos hazards, or that the Navy exercised anydiscretion on the point. Judge Bredar held that under thegoverning standard, a warning from Crane Co. to the Navy aboutasbestos hazards would only have been necessary if Crane Co. hadmore knowledge than the Navy about those hazards. Dr. Forman'saffidavit provides a wealth of information indicating the Navy wasa leader in the field of occupational health, including thatspecifically relating to asbestos hazards and the employment ofvarious measures to prevent exposure to asbestos. And the Noticeof Removal states, "The Navy, as one of the leaders in industrialhygiene state of the art, possessed knowledge regarding thehazards of asbestos equal to or superior to its equipmentsuppliers, such as Crane Co." Consequently, Crane Co. was notrequired to warn the Navy about asbestos hazards. Additionally,the various affidavits establish the discretion exercised by theNavy over its suppliers as to the placement and content ofwarnings on their products; moreover, according to what is beforethe Court, the Navy exercised that discretion in a strict manner,requiring absolute adherence to MilSpecs.

A full-text copy of the Memorandum and Order dated September 29,2016 is available at https://is.gd/cgwT31 from Leagle.com.

In this case, following Larry's diagnosis, the Myerses filed acomplaint naming nearly 40 defendants, including Bremen andMastic. In the complaint, the Myerses alleged the Defendantsnegligently hired their independent contractors and werevicariously liable as principals and further liable as premisesowners. As to the vicarious liability claims, the Myerses allegedthe Defendants' own employees and the employees of theirindependent contractors negligently exposed Larry to asbestos.The Myerses do not allege Larry's employer, Koontz, is negligent,nor do they allege the Defendants negligently hired Koontz. To beclear, the Myerses only claim the Defendants' employees andindependent contractors negligently exposed Larry to asbestos. Asto the premises liability claim, the Myerses alleged theDefendants knew or should have known the dangers associated withasbestos, failed to warn Larry of the danger, and therefore failedto maintain the premises in a reasonably safe condition.

The Defendants then each moved for summary judgment on all threeclaims, arguing they could not be held vicariously liable underrespondeat superior or the non-delegable duty doctrine becauseLarry was an employee of an independent contractor injured by thevery condition he was employed to address and further arguing theycould not be held liable as premises owners because they did nothave superior knowledge of the risks associated with asbestos. Intwo separate orders, the trial court -- relying primarily upon oursupreme court's decision in PSI Energy, Inc. v. Roberts, 829N.E.2d 943 (Ind. 2005), abrogated in part by Helms v. Carmel HighSch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006) --concluded as a matter of law the Defendants could not be heldliable for the acts of their independent contractors under thenon-delegable duty doctrine and could not be held liable aspremises owners and entered partial summary judgment in favor ofthe Defendants on those two claims. In denying summary judgment onthe respondeat superior claim, however, the trial court concludeda genuine issue of material fact existed as to whether the acts ofthe Defendants' employees exposed Larry to asbestos. This appealand cross-appeal ensued.

On appeal, the Myerses argue the trial court erred in grantingsummary judgment in favor of the Defendants on the Myerses'vicarious liability claim under the non-delegable duty doctrineand premises liability claim; on cross-appeal, the Defendantsargue the trial court erred in denying their motions for summaryjudgment on the Myerses' respondeat superior claim.

This court concludes that (1) the trial court erred in grantingthe Defendants summary judgment on the Myerses' vicariousliability claim pertaining to the negligence of independentcontractors, (2) the trial court did not err in denying theDefendants summary judgment on the Myerses' respondeat superiorclaim, and (3) the trial court erred in granting the Defendantssummary judgment on the Myerses' premises liability claim.

The court held that the Defendants are not entitled to summaryjudgment on any of the Myerses' claims. The Defendants wererequired to designate evidence sufficient to negate the Myerses'claims. The Defendants did not meet this burden. In addition,the Defendants can be held liable for the negligent acts of theirown employees, and the trial court did not err in denying theDefendants summary judgment on the Myerses' respondeat superiorclaim, the court held.

As to the premises liability claim, there is a genuine issue ofmaterial fact as to whether the Defendants can be liable forfailure to maintain their premises in a reasonably safe condition,and the trial court erred in granting the Defendants summaryjudgment on that claim, the court further held.

A full-text copy of the Opinion dated September 28, 2016 isavailable at https://is.gd/XxIDcm from Leagle.com

This is Elsie Smith's second appeal to this Court. A jury awardedher more than three million dollars in damages after an asbestostrial in 2009, but the trial judge granted the defendants' motionfor JNOV. Elsie appealed, and this Court reversed and remandedfor further proceedings. Following remand, the trial judge againentered a JNOV, and Elsie now appeals that ruling and argues (1)that the trial court erred in adopting the Special Master'srecommendation and reaffirming JNOV "when the record reflectedsufficient evidence supporting the jury verdict on the issue ofcausation under Miss. Code Ann. Section 11-1-63"5; and (2) thatthe trial court erred when it granted deference to Judge Evans --the judge who had presided at trial -- "instead of the jury whichissued a verdict."

Chevron and UCC have filed cross-appeals, presenting severaldifferent issues, and Elsie has filed a motion to strike thecross-appeals. She argues that the defendants' "right to appealthe unconditional denial of their motion for new trial expired in2010 when no cross-appeal was filed. This Court disagrees.

The Mississippi Supreme Court reversed the trial judge's orderreaffirming JNOV and remand. The trial judge reaffirmed JNOV forthe sole reason that Elsie presented insufficient evidence ofLarry's exposure to the defendants' asbestos products. But theMissississi Supreme Court finds that Smith did present sufficientevidence to make the exposure issue a question for the jury. Andbecause the trial judge did not address any of the other argumentsthat the defendants reasserted after this Court's decision inSmith I, the Mississippi Supreme Court declines to address any ofthe other issues raised in the briefing and in the defendants'cross-appeals and remands this case to the trial judge so that hemay rule on any of those issues that he finds are stilloutstanding. The Supreme Court also denies Elsie's motion tostrike the defendants' cross-appeals.

A full-text copy of the Opinion dated September 22, 2016, isavailable at https://is.gd/m5nTqq from Leagle.com.

ASBESTOS UPDATE: Reynolds Owes No Duty of Care in Take-Home Case----------------------------------------------------------------In the case captioned ERNEST V. QUIROZ and MARY QUIROZ, husbandand wife, Plaintiffs/Appellants, v. ALCOA INC., et al.,Defendants/Appellees, No. 1 CA-CV 15-0083 (Ariz. App.), the Courtof Appeals of Arizona, Division One, is asked to decide as amatter of first impression whether an employer owes a duty of careto the child of an employee who contracts mesothelioma fromasbestos brought home on the employee's work clothes.

In this case, the Appellants allege Dr. Ernest V. Quiroz wasexposed to asbestos on his father's work clothes during the yearshe lived in his father's house. Dr. Quiroz was diagnosed withmesothelioma, a form of cancer frequently associated with asbestosexposure, in 2013. The Appellants alleged Reynolds Metal Company,who was Dr. Quiroz's employer at that time, was negligent. TheAppellants amended their complaint to allege wrongful death whenDr. Quiroz passed away in October 2014.

Reynolds moved for summary judgment, arguing that it did not oweDr. Quiroz a duty of care. The trial court granted the motion,finding Reynolds "had no duty to Plaintiffs as a matter of law."Appellants timely appealed.

To establish a negligence claim, a plaintiff must prove fourelements: (1) a duty requiring the defendant to conform to acertain standard of care, (2) the defendant's breach of thatstandard, (3) a causal connection between the defendant's conductand the resulting injury, and (4) actual damages.

The Arizona Court of Appeals found that there was no special orcategorical relationship between Dr. Quiroz and Reynolds anddeclined the Appellants' invitation to apply Restatement (Third)Section 54 and Restatement (Second) Section 371 in this case.Moreover, the Arizona Appeals Court held that Reynolds did not oweDr. Quiroz a duty as landowner.

In terms of public policy considerations, the Arizona AppealsCourt disagreed with the Appellants' argument that imposing a dutyof care on Reynolds would meet the reasonable expectations of theparties and of society and that "take-home exposure" cases are notan unreasonable extension of Burns v. Jaquays Mining Corp., 156Ariz. 375, 752 P.2d 28 (App. 1987). The court held that Burns isnot dispositive and the Appellants do not offer support for theirargument that "[a]ny property owner could reasonably expect that alack of due care in handling toxins on its premises, resulting inoff-premises injury, could lead to liability." A finding of aduty of care must come before considering whether Reynoldsexercised due care, the court said.

The Arizona Court of Appeals concluded that no duty of care arisesand, therefore, affirm the trial court's ruling.

A full-text copy of the Opinion dated September 20, 2016 isavailable at https://is.gd/RHuhDD from Leagle.com.

James Lee, personally and thereafter by Maria J. Lee, executor ofhis estate, and Maria J. Lee, filed this action against 18defendants alleging claims for, inter alia, negligence, breach ofimplied warranty, willful and wanton conduct, falserepresentation/fraud, and failure to warn arising out ofdefendants' acts in relation to asbestos and asbestos-containingmaterials, products, and equipment which plaintiff James Leeinteracted with, used, or was exposed to. James Lee was diagnosedwith an asbestos-related disease, specifically mesothelioma, inNovember 2014 and died on February 6, 2016.

The Plaintiffs seek to amend their complaint to conform thelanguage to reflect the death of James Lee and to add anadditional cause of action for wrongful death. The Plaintiffsfurther seek to remove those defendants and causes of actionswhich have been dismissed. Union Carbide opposes the motion forleave in part as to the amendment of factual judicial admissions.

Seventeen of the eighteen original defendants have either settledwith the plaintiffs or have been dismissed by the plaintiffs.Remaining for adjudication are plaintiffs' claims against UnionCarbide Corporation.

Judge Boyle finds no prejudice to Union Carbide in the plaintiffs'request, and therefore granted the plaintiffs' motion. JudgeBoyle denied Union Carbide's motion for summary judgment findingthat the plaintiffs have proffered sufficient evidence to create ageniune issue of material act as to whether Mr. Lee was exposed toUC's asbestos on a regular basis over an extended period of time.The Court pointed out that deposition testimony indicates thatGeorgia-Pacific sourced asbestos from UC from 1969 to 1977, thatits plant in Marietta, Georgia supplied joint system products inthe southeastern United States during that time, and that a personusing Georgia-Pacific ready-mix made in Marietta from 1972 to 1977would more likely than not have been using UC's Calidria asbestos.While there is some conflicting evidence in the depositiontestimony as to when Georgia-Pacific joint compound sourced UCCalidria for its Marietta, Georgia and Milford, Virginia plants,resolution of such issue would be better made by a jury. ThePlaintiffs have further proffered sufficient evidence to resistsummary judgment on their claim that UC's failure to warn Georgia-Pacific and U.S. Gypsum of the dangers of its Calidria product wasa proximate cause of Mr. Lee's mesothelioma.

A full-text copy of the Order dated September 21, 2016 isavailable at https://is.gd/VQ6W8W from Leagle.com.

Plaintiff Eagle, Inc., filed the action against several insurancecompanies seeking a declaratory judgment regarding the obligationsof the insurance companies to provide defense and indemnity innumerous asbestos cases deriving from exposure that occurred inthe 1950s through the 1980s. Eagle, Inc. is the successor companyto Eagle Asbestos & Packing Co., Inc., which was in the businessof selling, installing, and removing asbestos-containing productsat various sites from approximately 1937 until sometime in the1980s. Since the inception of this litigation the defendantinsurers have complained that Eagle's claims suffer from a lack ofdetail as to claimants, lawsuits, settlements, defense costs, andevery other kind of claim-specific fact necessary to triggercoverage under the policies.

Another theme that has permeated this litigation is theDefendants' suggestion that this litigation is merely aninvestment opportunity for non-party Raymond Tellini, abusinessman and investor who first became involved with Eagle inDecember 2012 -- a time when Eagle had no ongoing operations.

Movants TIG and U.S. Fire have submitted a plethora of exhibitsoffered to support their contention that Tellini is the alter egoof Eagle, Inc., and its corporate owner Eagle Acquisitions, Inc.From there, the Movants argue that the Second Amended Complaint,which brought them into this litigation, should be dismissedbecause without Tellini's joinder as a plaintiff in this case,they run the risk of incurring multiple or inconsistentobligations with respect to the insurance coverage provided toEagle.

The Court finds that Eagle, Inc.'s opposition memorandum stateswell the non sequitur implicit in Movants' argument. Even ifTellini is the alter ego of Eagle, Inc. such that he would nowhave standing as a plaintiff to pursue a declaratory judgmentaction against Eagle's insurers -- a specious proposition in andof itself -- the Court fails to appreciate how Tellini's joinderas a plaintiff ameliorates Movants' valid concerns regardingmultiple or inconsistent obligations with respect to the insurancepolicies provided to Eagle. Moreover, Tellini's absence as aplaintiff does not prevent the Court from according completerelief among the existing parties, the court held.

A full-text copy of the Order dated September 27, 2016 isavailable at https://is.gd/4PPYC8 from Leagle.com.

The case was originally filed with several others in the late1980s in Ohio, and became consolidated in the Northern District ofOhio's Maritime Docket. Several of the defendants in the case,including Matson, moved for dismissal on the grounds of lack ofpersonal jurisdiction. The judge agreed that the court lackedpersonal jurisdiction, but rather than dismiss the casescompletely, he ruled that they should be transferred toappropriate venues that could exercise personal jurisdiction overthe defendants. The judge deferred issuing an order on thetransfer. Instead, the judge allowed plaintiffs to identify courtswhere personal jurisdiction was proper, and the defendants coulddecide whether they wanted to transfer, or to waive their personaljurisdiction defenses and litigate in the Northern District ofOhio. The judge issued two orders memorializing this decision.

The second order stated that the court did not have personaljurisdiction over Matson as it related to three specificplaintiffs. Matson moved to certify the orders for interlocutoryappeal in the Sixth Circuit, and to stay proceedings until theappeal was decided. Matson then filed a "Master Answer" whichincluded lack of personal jurisdiction as an affirmative defense.American adopted the Master Answer as its own in relation to thethree specific plaintiffs.

The consolidated cases were eventually grouped into "clusters" andeven "sub-clusters." The clusters and sub-clusters were to eitherbe transferred to a district court in Michigan, or remain in Ohio.During a hearing on this issue in 1991, the attorneys for Matsonand American stated they objected to transfer one of the clustersto Michigan. The parties agreed that they would proceed with"these cases" in Ohio instead.

A multi-district litigation for asbestos matters was developed inthe Eastern District of Pennsylvania, and the matters weretransferred there in 1991. Matson and American opposed thetransfer, writing "If transfer is to take place, Shipowner-Defendants request that it be to the Northern District of Ohio."Nevertheless, the cases were transferred to the Eastern Districtof Pennsylvania and laid dormant until 2011 when they werereactivated for pre-trial administration.

In July 2014, the attorneys for Matson and American filed a motionto dismiss for lack of personal jurisdiction, which was granted.The Pennsylvania court reasoned that the defendants had not waivedtheir personal jurisdiction defense because they had raised itinitially, raised it again in their Master Answer, and raised ityet again in the hearing in 1991.

The most significant issue was which cases Matson and American hadconsented to litigate in Ohio at the 1991 hearing. If theplaintiffs' claims were included in those that were intended to betransferred to Michigan, then the Defendants would not preservetheir defense because they had stated at the hearing that theyagreed to proceed with "these cases" in Ohio rather than Michigan.The Pennsylvania court found that the plaintiffs' claims were notincluded in the Michigan cluster, reasoning that "these cases"referred to a different cluster. Thus, the Defendants did notwaive their personal jurisdiction defense as it pertained to thethree specific plaintiffs. Therefore, the Eastern District ofPennsylvania dismissed the case for lack of personal jurisdiction.

On appeal, the Third Circuit rejected the reasoning of thedistrict court. The Third Circuit found that the defendants did,in fact, waive their personal jurisdiction defenses as itpertained to the three specific plaintiffs in the 1991 hearing.Examining the record of the hearing closely, the Circuit Courtfound that the consent to litigate in Ohio included plaintiffs'claims and that "these cases" certainly referred to the cluster ofcases that were going to be transferred to Michigan, whichincluded plaintiffs. As such, Matson and American had waived theirpersonal jurisdiction defenses as it pertained to these threeplaintiffs. The Third Circuit also pointed out that in theirfilings opposing transfer to Pennsylvania, the Defendantsexpressed a desire to have these cases transferred to the NorthernDistrict of Ohio, which was also a waiver of personaljurisdiction. For these reasons, the Third Circuit determined thatdismissal was improper, and reversed the decision, keepingplaintiffs' claims against Matson and American alive.

ASBESTOS UPDATE: Family Seeks Help Over Parents' Asbestos Death---------------------------------------------------------------East London & West Essex Guardian reported that a familydevastated by the death of a father and mother after they wereexposed to asbestos from a power station is appealing for thepublic's help.

Lilian Radley, formerly of Marlborough Road, in Chingford, died inSeptember this year from mesothelioma, a disease which has onlyone known cause -- exposure to asbestos.

The family are now searching for the former co-workers of the lateFrank Radley, whose overalls Mrs Radley would wash after he camehome from work.

A post-mortem revealed it was the exposure to the asbestos inthese overalls which killed Mrs Radley.

Mr Radley was exposed to toxic levels of asbestos while working asa boiler house engineer at Brimsdown Power Station in Enfieldbetween 1958 and 1980.

He worked for the British Electricity Authority, which became theCentral Electricity Authority, and then the Central ElectricityGenerating Board.

His job also took him to West Ham Power Station in Canning Townand Brunswick Wharf Power Station, near Blackwall, before heretired in 1983.

He was exposed to the deadly particles from the continuous laggingwork carried out to the extensive pipework in the power stationsand died in 2011.

Mrs Ridley had been having problems with breathlessness this year,finding it increasingly harder to walk, and after a trip to thedoctor, she found out her devastating diagnosis.

She was told she had mesothelioma in July this year, and the fast-acting disease killed her less than two months later on September9.

Before her death, she instructed expert industrial disease lawyersto investigate how her late husband was exposed to asbestos dust.

She also sought to find out if more could have been done by hisformer employers to protect him from the lethal substance.

He said: "Cases involving wives or daughters who washed workers'clothing are becoming increasingly more common.

"Lilian died because her late husband's employer exposed him toasbestos at work and failed to protect him and his family fromthis deadly dust.

"Clearly, this should not have happened.

"The dangers of asbestos were well-known to Mr Ridley's employersduring the years of his employment.

"The courts have previously held that employers should have beenaware of the dangers to family members caused by workers bringinghome asbestos dust on clothing since 1965 at the earliest."

The Radley family is asking anyone with information to contactAndrew James at Hodge Jones & Allen on 020 7874 8458 orajames@hja.net.

ASBESTOS UPDATE: Asbestos Ban Bills Introduced in US Congress-------------------------------------------------------------Kelly Franklin, writing for Chemical Watch, reported that billshave been introduced in the US House of Representatives and in theSenate looking to ban or restrict asbestos, and bisphenol A (BPA)from food containers.

If passed into law, it would have the EPA impose prohibitions,restrictions and other necessary conditions to "permanentlyeliminate the possibility of exposure to asbestos" within 18months of enactment.

And, within 90 days, the agency would have to carry out andpublish an assessment of the current and reasonably anticipatedimportation, distribution, uses of and exposures to asbestos.

The bill includes a provision allowing the president to grant anexemption in uses necessary to protect national security. Thiswould require that no reasonable alternative exist, and that theuse would not result in an unreasonable risk to the health or theenvironment, irrespective of costs. Exemptions could be effectivefor a period not exceeding three years.

The measure has been referred to the Senate Committee onEnvironment and Public Works.

BPA bill

In the House, a separate measure seeks to ban the use of bisphenolA (BPA) in food containers.

HR 6269 -- the Ban Poisonous Additives Act of 2016 -- would banfood containers composed, in whole or in part, of BPA, or that canrelease BPA into food. It would apply to reusable food containers,as well as any food container packed with food and destined forinterstate commerce.

As drafted, the bill calls for a waiver provision. This wouldallow the continued use of BPA upon demonstration that it is nottechnologically feasible to replace it, and with submission of atimeline for removing the substance. Such products would besubject to labelling requirements.

The measure also calls on the FDA to "promote, facilitate andincentivise the use of safer alternatives to replace BPA".

It would block the replacement of BPA with substances:

* known or likely human to be carcinogens; * deemed by the EPA to be persistent, bioaccumulative and toxic(PBTs); * that cause reproductive or developmental toxicity; or * are endocrine disruption chemicals.

The bill would also put in place a process by which the FDAselects food contact materials for future review. This includesremediation actions should the agency determine there is notreasonable certainty that no harm will result from aggregateexposure to a reviewed substance.

Both measures were introduced shortly before both chambersadjourned until after the November elections.

ASBESTOS UPDATE: Man Sues Greensboro Over Exposure to Asbestos--------------------------------------------------------------Greensboro.com reported that the city said it has been sued by aformer city contractor, who alleges he was exposed in 2014 toasbestos during demolition at War Memorial Auditorium.

Raiford Tetstone Jr. won an auction bid for the scrap metal at thestructure, the city said in a news release. The lawsuit was notimmediately available to be reviewed. Tetstone could not bereached.

The city said the metal removed by Tetstone and his workersincluded pipe wrapped in insulation that contained asbestos.Tetstone said he was exposed to the material over several days inSeptember and October 2014. He filed suit against the city and twocity employees in September.

After the asbestos was discovered, the city hired asbestosabatement companies to remove the remaining asbestos, the citysaid.

The city has reached two settlements with state agencies over theasbestos. It paid $2,100 to the N.C. Department of Labor for notmarking asbestos-contaminated areas to minimize exposure.

Greensboro paid another $5,300 to the state Department of Healthand Human Services for six violations, including failing to removethe asbestos under the supervision of an accredited supervisor.The city said the lawsuit alleges Tetstone suffered a physicalinjury from exposure to asbestos and seeks an unspecified amountof money.

ASBESTOS UPDATE: Federal Bldgs in Hamilton Have Asbestos--------------------------------------------------------900CHML.com reported that according to data from the newly-released Canadian National Asbestos Inventory, seven federalbuildings in the Hamilton area contain asbestos.

The carcinogen is present at:

* The four Standard Life Centre buildings at 120 King St. W * The Robert Thomson Building at 110 King St. * An office at 1550 Upper James St. * The Burlington Lift Bridge at Eastport Drive.

According to the list, all of the buildings-except for the officeon Upper James-have an "asbestos management plan" in place.

The government's major property owner, Public Services andProcurement Canada (formerly Public Works), has developed theNational Asbestos Inventory.

The list names all buildings owned or leased by the department andsays whether or not they have asbestos.

National health and safety officer with the Public ServiceAlliance of Canada (PSAC), Denis St-Jean, says having a list isgood, but there should be more detail about the hazard.

While asbestos isn't necessarily dangerous on its own, it becomesa problem when the fibre is distributed.

According to the Canadian Centre for Occupational Health andSafety, asbestos fibres are easily inhaled, and can cause fibroticlung disease and changes in the lining of the chest cavity. Long-term inhalation of asbestos also increases the risk of lungcancer.

St-Jean adds, "if the hazard is present, not only does the workerhave a right to know about that hazard, but I think the public --if they do have access to that building -- should know thatthere's a hazard in that building."

Asbestos is also present in nearby Brantford at buildings at 58-70Dalhousie E. and an office in Burlington at 3027 Harvester Rd.

ASBESTOS UPDATE: Libby Asbestos May Lead to Autoimmune Disease--------------------------------------------------------------Justin Franz, writing for Flathead Beacon, reported that foryears, cancer was the biggest concern for Libby residents exposedto asbestos-laden vermiculite from a nearby W.R. Grace & Co. mine.But new research shows that the asbestos poisoning there may havealso led to an increased rate of autoimmune diseases likerheumatoid arthritis, lupus, and scleroderma.

In the early 2000s, in the years following the discovery of thecontamination, approximately 7,300 Lincoln County residents took ahealth survey conducted by the Agency for Toxic Substances andDisease Registry. During the survey, a measurable group ofrespondents reported having autoimmune diseases. However, thatdata was not explored further until the mid 2000s, when MontanaState University research scientist Dr. Jean C. Pfau started tolook into it.

The most obvious symptom of rheumatoid arthritis is joint pain,especially in the hands and feet. It can also cause painfulswelling, bone erosion and joint deformity. The disease causes thebody's immune system to attack its own tissue. It cannot be cured,but it can be treated.

Of the 7,300 people surveyed, 113 reported being diagnosed withrheumatoid arthritis, nearly twice what was expected. Higher ratesof lupus (another autoimmune disease that attacks the tissue andoften causes a rash) and scleroderma (which often results intightening of the skin) were also reported in Libby.

While scleroderma is considered a rare disease, with fewer than200,000 cases per year in the United States, there were at least50 reported cases of it in Libby.

"We have a strong case that there is something going on in Libbyin regards to the increase of these autoimmune diseases," Pfausaid. "These people are suffering from fatigue, rashes, jointswelling, and other symptoms of autoimmune diseases, but they'renot properly diagnosed because it doesn't fall into traditionaldiagnostic categories."

In 2008, Pfau teamed up with Dr. Brad Black at the Center forAsbestos Related Diseases (CARD) in Libby to study it further withthe help of a multi-million dollar grant from the federalgovernment. Since Pfau couldn't be sure that Libby asbestos wascausing an increase in autoimmune diseases, she exposed laboratorymice to Libby-mined asbestos. Almost all of the rodents developedautoimmune diseases.

Researchers also looked at other groups of people exposed toasbestos, like a group of New York pipefitters, but there was notan increased level of autoantibodies among that population,meaning the correlation could be specific to Libby.

The grant that helped spur Pfau's research is now about to runout, and she is currently writing up the results of her work,which should be finished in the coming months. Pfau and Black areoptimistic, however, that they will be able to find additionalgrant funds to ensure they can continue studying autoimmunediseases in Lincoln County.

If they can study it further, Black and Pfau believe it would bepossible to find a treatment for the conditions.

For years, the W.R. Grace & Co. mined vermiculite containingasbestos north of Libby that was used for instillation and otherapplications. The mine closed in 1990. More than 2,000 current orformer residents of Lincoln County have been diagnosed withasbestos-related diseases, including cancer, and at least 400 havedied in the last decade.

Libby was declared an Environmental Protection Agency Superfundsite in 2002, becoming one of the largest environmental cleanupsin U.S. history. In 2009, former EPA administrator Lisa Jacksonnamed the town the agency's first and only Public Health Emergencyresulting from an environmental disaster.

ASBESTOS UPDATE: Factory Worker Dies From Asbestos Disease----------------------------------------------------------Suffolk Free Press reported that a former employee at a LongMelford factory died as a result of exposure of asbestos dust, aninquest has concluded.

Christopher Gaw, 74, had worked at Bush, Boake and Allen,previously known as Stafford, Allen and Sons, in a variety ofroles.

The inquest at Bury St Edmunds heard that Mr Gaw, of High Street,Long Melford, had started working for the company in north Londonbefore moving to Suffolk.

In a statement he made before his death on August 31, Mr Gawdescribed how he had been in close proximity to clouds of asbestosdust during maintenance and cleaning work.

During one task when he helped to chip scale from inside pipes,asbestos with which the pipes were lagged was disturbed. Mr Gawsaid: "It hung in the air like a fair mist."

In his statement, Mr Gaw said symptoms of his condition began inFebruary last year when he suffered severe pain after sneezing. Hewas diagnosed with the asbestos-related condition mesothelioma amonth later.

Assistant Suffolk Coroner Nigel Parsley recorded a conclusion thatMr Gaw died as a result of an industrial disease.

ASBESTOS UPDATE: Mesothelioma Grading System Improves Prognosis---------------------------------------------------------------Tim Povtak, writing for Asbestos.com, reported that the first two-tier grading system for peritoneal mesothelioma has produced asignificant subset of patients with an incredible median overallsurvival of nearly 12 years.

Levine, a specialist in peritoneal mesothelioma, was part of amedical team that recently studied database cases from the past 20years, applying pathological analysis previously used only withpleural mesothelioma, which is more common.

The American Journal of Surgical Pathology published the findingsin its September issue. Surgeons from Wake Forest, University ofMississippi Medical Center and Memorial Sloan Kettering CancerCenter joined Levine in the research.

A cancer grading system is different than a cancer staging system.The grade, which is based on cell appearance, is an indication ofhow quickly the cancer tumor it is expected to grow. The higherthe grade, the faster it grows.

Meanwhile, staging of a tumor is based on its extent or size. Thehigher the higher the number, the more advanced the cancer.

Wide Range of Mesothelioma Survival Rates

Researchers used 46 cases of the epithelioid subtype ofmesothelioma in the study and divided them into low-grade andhigh-grade tiers based on characteristics found in the tumor cellnucleus.

The low-grade tier had an overall median survival of 11.9 yearsand a five-year survival rate of 57 percent. The high-grade tierhad a median survival rate of 3.3 years and a five-year survivalrate of 35 percent.

The low-grade tier had a median progression-free survival of 4.7years and a five-year survival rate of 65 percent. The high-gradetier had a median progression-free survival of 1.9 years and afive-year survival rate of 35 percent.

"Not everyone is going to be a long-term survivor. I wish they allcould be, but we're not there yet," Levine said. "The patient withthe worst prognosis might benefit from additional treatments. Wedon't know that yet, but it's something to think about."

Levine is intrigued by the potential gains in therapy more exactprognostics could spark, but there are no assurances. All cases inthe study included cytoreductive surgery and heatedintraperitoneal chemotherapy (HIPEC), which are the standards ofcare today.

"These are new findings, so right now the diagnostics are ahead ofthe therapeutics a little bit," he said. "That might change. Ihope that it does."

Mesothelioma Treatment Advances Widen Survival Gap

Pleural mesothelioma is a rare and aggressive cancer caused byinhalation of asbestos fibers that become lodged in the thinmembrane around the thoracic cavity. Over time, those fibers causescarring that can develop into cancer.

An estimated 3,000 people are diagnosed with mesothelioma annuallyin the U.S., but only 10 percent of those cases are the peritonealtype. Epithelioid is the most common subtype of pleural andperitoneal mesothelioma.

Wake Forest School of Medicine's earlier study showed the mediansurvival of a peritoneal mesothelioma patient was more than fourtimes greater than of a pleural mesothelioma patient.

Some of the difference in survival between the two types stemsfrom therapeutic advancements available to peritoneal patients.The HIPEC procedure has worked well, but it is less effective forpleural mesothelioma.

Although the use of asbestos, a naturally occurring mineral, hasdropped significantly across the country in recent decades, therate of mesothelioma diagnosis remains steady.

It often takes 20-50 years after first exposure to asbestos beforedoctors diagnose the cancer. Exposure today often comes from theremodeling, renovating or demolishing older structures containingasbestos, which makes advances in diagnostics and therapeuticscritical.

"We have patients now who are long-term, disease-free survivors.Some of it because of the treatment they received," Levine said."Some of it, obviously now, is because they were part of thissubset of patients who had a better prognosis based on the natureof their disease."

ASBESTOS UPDATE: Fitness Instructor Diagnosed with Mesothelioma---------------------------------------------------------------Sophie Haslett, writing for Daily Mail Australia, reported thatwith a job as a fitness instructor, a dream of climbing MountEverest and a love of sport and fitness in general, in manypeople's eyes, Galy O'Connor, from Sydney, was the picture ofhealth.

It wasn't until her 50th birthday that the now 55-year-old felt alump in her abdomen while training a class in a Virgin Active gymin Frenchs Forest.

This prompted Ms O'Connor to see her doctor, where she wasdiagnosed with an extremely rare form of asbestos cancer --peritoneal mesothelioma.

There are only around 400 known cases of this type of cancer inthe world.

Totally unbeknownst to Ms O'Connor, she had been carrying thedisease, dormant, for more than 30 years.

She contracted it after working in an asbestos-filled factorymixing paint colours during her teenage years.

'I'd never had a cold in my life -- I don't do sickness,' the 55-year-old told Daily Mail Australia.

'I went into shock and total disbelief when I found out; in someways I still am in shock.

'I live in the third person a lot as that makes it easier -- myhusband calls it "Disneyland". Back when I found out, I handled itmuch like many women do. I shopped and got my nails done.

'These days, I live with pain 24/7. I can no longer work.Sometimes I just lie there crying or curl up in a ball with thepain.'

Faced now with the very real prospect that she might die, unlessshe gets the vital surgery which she needs from specialisthospital, St George Hospital, in Sydney's south, Ms O'Connor hasdecided to take matters into her own hands.

As well as being on the hospital's waiting list for the past tenmonths, she has set up a Change.org petition, begging the HealthMinister to urgently intervene and make sure that she gets thelife-saving operation she so desperately wants.

'While the tumour is on my liver and my groin at the moment, it isoperable,' she told Daily Mail Australia.

'However, it will only be operable for six or so weeks. Afterthat, who knows?'.

And despite being faced with her debilitating illness, the mother-of-six still says she 'will not give up.'

'I exercise for an hour every single day, even though it's agony,'she said.

'I also only eat at night because it's so painful. After I havedone so, I take morphine so I can pass out. I'm aware I need toeat in order to keep my digestive system going and survive.

'I still dream of climbing Mount Everest one day -- I can do that,can't I?'.

So far, Ms O'Connor's petition to get the highly-skilled surgeon,Professor Morris, at St George Hospital, to perform the complexsurgery necessary, has attracted 64,000 signatures.The 55-year-old said that she hopes to reach 100,000 before theend of October.

'My whole family has been engulfed by my illness, and my biggestfear is that I won't see my grandchildren. I want to be here, andbe a part of their lives.'

And while at the moment, she is trying not to think about whatmight happen if she doesn't get the operation, she also says shestruggles to think about what will happen if she does:

'I have to be so strong in my mind.

'The only way I can describe it is to say that I feel like I'm ina racing car moving towards the finish line. I feel as though Iwant to get out, but I know I can't.

'I need the operation. For me, it's the only way.'

ASBESTOS UPDATE: Mr. Fluffy Fraud Accused Dismissed---------------------------------------------------Megan Gorrey, writing for The Canberra Times, reported that acourt has thrown out a charge against a man accused of tricking aCanberra home owner into believing their house contained deadly MrFluffy asbestos.

Garry John Miller, 54, faced court in May after police alleged heproduced paperwork that implied asbestos had been found at theproperty.

Mr Miller, of Deakin, pleaded not guilty to a single charge ofproducing a false or misleading document. He appeared in the ACTMagistrates Court for a brief hearing on Monday.

Prosecutors said the home's owners asked Mr Miller, who had beenlisted as a licensed asbestos assessor on a government website, toprepare an asbestos assessment report to identify anycontamination at their Duffy home in 2013.

The court heard Mr Miller's report stated there was Mr Fluffyasbestos found in the home, when in fact there was no asbestospresent.

His report spoke generally of the risks involved, but it did notcover how those risks could be managed, and did not meet all thecriteria to be considered an asbestos assessment report under ACTlaw following a change in regulations in 2015.

Mr Miller's lawyers argued the change in legislation since thereport was produced meant the alleged offence could not be madeout.

ASBESTOS UPDATE: Workers Exposed to Asbestos at VA Campus---------------------------------------------------------Jillian Duff, writing for Mesothelioma.com, reported that over adozen workers were exposed to asbestos during the constructionproject of Building 36 for the Veterans Crisis Line on theCanandaigua Veterans Affairs (VA) campus. These workers includedfirefighters, police officers, and those with constructionpositions such as engineering and cleanup roles.

"We don't know exactly who all was exposed, but between 34 and 38individuals came forward," said business representative for SEIU200 United David Palmer.

SEIU 200 United filed a compliant with the Occupational Safety andHealth Administration (OSHA) in April. The EnvironmentalProtection Agency (EPA) and VA Inspector General's office becameinvolved, resulting in a stop-work order almost immediately.

Of all the individuals in the U.S. who have been diagnosed withmesothelioma cancer, veterans are the demographic with the highestincidence. The simple reason for the increased risk is asbestosexposure. Asbestos was used in hundreds of applications andunavoidable for most military personnel.

Some studies show as many as 30% of all Americans withmesothelioma cancer are veterans who were exposed while on activeduty. The U.S. Department of Asbestos Affairs recognizesmesothelioma cancer as a service-related medical condition, andwhile vets are not permitted to seek compensation directly fromthe U.S. government, they can request benefits from the VA.

Mesothelioma has especially affected those who served between WWIIand the Vietnam War with a particular focus on the Navy asasbestos was widely used in naval ships and shipyards. Whether itwas the boiler or engine rooms, galleys, or sleeping quarters,Navy personnel were exposed to very high levels of asbestos.

In this instance, OSHA discovered four "serious asbestosviolations." Correct procedures were not being followed, VAmanagement did not hire competent staff to oversee the project,and the proper precautions were not being carried out to containasbestos exposure within the construction area.

"Subsequent to OSHA findings, several VA employees filed claimswith Workman's Compensation and VA Employee Health as potentialexposure victims," said the union. "Front-line workers tried tomake facilities management reconsider how the project was beinghandled, but felt they were dismissed."

In a recent statement, the VA commented, "The medical centermaintains the safety of its staff as top priority. All theemployees that may have been in contact with asbestos have beenencouraged to report to employee health to be evaluated forpotential exposure."

"Due to the nature of asbestos-related illnesses often lackingacute symptoms despite having serious long-term health risks,workers who are active in their Union are concerned people who mayhave been exposed to asbestos in Building 36 may not come forwarddue to fear of retaliation," stated the union.

An abatement contractor has been hired to manage the asbestos areaand OSHA investigators will return in a few weeks to check in.

ASBESTOS UPDATE: Judge to Hear Arguments on Merc Issue------------------------------------------------------David Erickson, writing for Missoulian.com, reported that even asthe last remaining asbestos is being removed from the historicMissoula Mercantile building, a hearing has been for a judge todecide whether he will dismiss a preservation group's request tohalt the deconstruction process.

Lawyers representing three different groups -- the city, thecurrent owner of the Merc and a developer who is proposing tobuild a $35-million hotel in its place will face off againstPreserve Historic Missoula's attorney. All sides will presenttheir cases before Missoula County District Court Judge Robert"Dusty" Deschamps.

Preserve Historic Missoula asked for a restraining order to haltthe deconstruction, but withdrew that request. However, an appealto reverse the City Council's decision to approve a partialdemolition permit is still before the court.

Lawyers for the city, the building's owner and the developer, AndyHolloran, have asked the judge to dismiss PHM's appeal. In themeantime, the city has issued the developer a permit to begin theasbestos abatement.

A demolition permit for asbestos abatement only has been issued tothe developer. However, a demolition permit that would actuallyallow deconstruction has not been issued by the city. That can'thappen until the developer presents detailed financial plans toshow they can actually build what they say they will, engineeringplans to show how they would save the pharmacy portion of thebuilding and proof that the asbestos is all gone, among otherthings.

Alan McCormick, a lawyer for the developer, made it clear in courtduring a scheduling hearing that asbestos abatement will go on asscheduled.

"Our agreement of this schedule is not an agreement to stop doingabatement work on the building," he said.

There had been disagreement between the two sides about whetherasbestos abatement constituted a start of the deconstructionprocess.

Judge Deschamps agreed that the abatement could start.

"I think the big issue would be if you started knocking down brickwalls or tearing down the faáade," Deschamps said jokingly. "Theasbestos is going to have to be dealt with no matter what. Butdon't test my patience by bringing in a crane and start knockingdown walls."

If Deschamps denies the motions to dismiss, each party must file amotion for summary judgment. The court's schedule for the Merccase calls for each parties' time limits to be reduced to fivedays to file responses and reply briefs.

ASBESTOS UPDATE: Wrongful Death Suit Alleges Asbestos Exposure--------------------------------------------------------------David Yates, writing for SE Texas Record, reported that severalcorporations have been named as defendants in a wrongful deathsuit alleging asbestos exposure.

Judge Kent Walston, 58th District Court, has been assigned to thecase.

Case No. A-199143

ASBESTOS UPDATE: Asbestos Found Buried Behind Abandoned School--------------------------------------------------------------Krystyne Brown, writing for WSPA.com, reported that cleanup isunderway in Seneca after asbestos was uncovered behind anabandoned school in the middle of a neighborhood.

In September, DHEC inspectors say they were alerted by ananonymous tip that asbestos was buried behind old KellettElementary school in Seneca.

They met with city leaders to check it out. Both the city and DHECtested the material and determined it was asbestos tile from oldconstruction material that was deep in the dirt.seneca-asbestos-school-pic

Allan Yarid, a former city council member, grew up and still livesright next door to the school. After it shut down years ago, heand several other neighbors have become invested in what happensto the building next.

"We still use this ball field up here for a soccer field," Yaridsaid. "This field is one of the little league's first ball fieldsin the state. They used to play football out here for practice."

Yarid says the neighborhood brought their suspicions about theasbestos to the city council before. The site has been theresponsibility of the city for years. That's why he believes cityofficials should be held responsible for the asbestos.

"The whole thing stinks from the very beginning," Yarid explained."Something has been dug 60 feet long you know, you got to haveheart equipment to dig something that deep."

He and other neighbors say they are concerned the asbestos couldbe damaging to their health. They believe there is much moreasbestos to be discovered.

"It could get into the air and get into the water system, youknow, we like to live in a clean environment. That's what theneighborhood wants," Allen continued. "Why would you cover it up?If you didn't think it was asbestos why wouldn't you take it anddispose of the material properly?"

However, DHEC says inspectors haven't been able to determine whodumped the asbestos in the lot. They tell 7 News that the city isworking with them to get the material removed.

Seneca Director of Utilities Bob Faires says they believe someonedug a hole on the property and "sprinkled pieces of tile in thehole".

Faires says they are being proactive and are taking the situationseriously. They are expecting quotes from asbestos removalcontractors to clean up the site. But Faires says the asbestos isnot a threat to people living in neighboring homes.

DHEC says they have not given the city a deadline to have the sitecleaned up, but they have advised them to do it quickly.

ASBESTOS UPDATE: Insulation Blamed for Aussie Mesothelioma Cases----------------------------------------------------------------Australian researchers say an area that once had the lowest rateof malignant mesothelioma in the country has caught up to otherregions in recent years. Their newly-published findings are thesubject of a new article on the Surviving Mesothelioma website.

Scientists with Australia's National Centre for Epidemiology andPopulation Health at the Australian National University inCanberra analyzed mesothelioma cases from multiple cancerdatabases to determine that malignant mesothelioma is occurringmore frequently in the ACT now than it ever has in the past.

"Between 1994 and 2011, age-and sex-adjusted mesothelioma rates inthe ACT increased over time, on average by 12 percent per 3-yearperiod," writes lead study author Rosemary Korda.

Although there were no asbestos mines in the ACT, many homes werebuilt with loose-fill asbestos insulation, which can easilydeteriorate and become breathable dust over time. Officials areconcerned that this may be contributing to the rising number ofpeople with mesothelioma.

"While this study does not reach any firm conclusions about loose-fill asbestos insulation, it should be a warning for anyone withthis type of insulation in their home that it is potentiallydangerous and should be dealt with only by certified asbestosabatement professionals," says Alex Strauss, Managing Editor forSurviving Mesothelioma.

According to the World Health Organization, Australia has theworld's highest per capita rate of malignant mesothelioma, largelydue to its long history of asbestos minding.

Korda, RJ, et al, "Mesothelioma trends in the ACT and comparisonswith the rest of Australia", September 2016, Public HealthResearch & Practice, https://www.ncbi.nlm.nih.gov/pubmed/27714389

For nearly ten years, Surviving Mesothelioma has brought readersthe most important and ground-breaking news on the causes,diagnosis and treatment of mesothelioma. All SurvivingMesothelioma news is gathered and reported directly from the peer-reviewed medical literature. Written for patients and their lovedones, Surviving Mesothelioma news helps families make moreinformed decisions.

ASBESTOS UPDATE: Mesothelioma Causes Death of Retired Carpenter---------------------------------------------------------------Somersetlive.co.uk reported that an inquest has heard how aretired carpenter worked with asbestos decades before he developedan incurable cancer.

The hearing at Taunton Coroners Court heard statements made byKenneth Stennard before his death at the age of 80 in July.

He had a diagnosis of mesothelioma confirmed in August last year.

In a statement read at the inquest, Mr Stennard described stintsin the Army, and how he worked as a carpenter and joiner fordozens of employers throughout his working life.

As part of his work, he regularly cut up asbestos sheets whichwere to be used as roofing material, without the use of any safetyequipment.

The inquest also heard how it common for buildings in the 1960s tobe roofed in asbestos sheeting.

In his statement, Mr Stennard said symptoms of his condition beganin summer last year when he suffered shortness of breath.

He was diagnosed with the asbestos-related condition mesotheliomaa month later and died less than a year after that at his home inDorset Close, Highbridge, on July 10, 2016

Senior Somerset Coroner Tony Williams recorded a conclusion thatMr Stennard died as a result of an industrial disease.

ASBESTOS UPDATE: Asbestos Cleanup Planned for Historical Museum---------------------------------------------------------------Rhiannon Poolaw, writing for KSWO.com, reported that Stephenscounty officials are making preparations to remove the asbestosfrom a museum.

Officials say the project to remove lead from the building thathouses the Stephens County Historical Museum will cost about$170,000.

The goal is to clean up the lead dust from the indoor firingrange, along with any lead-based paint and asbestos-containingmaterial found in the building.

Duncan City Council members approved a contract with the OklahomaDepartment of Environmental Quality for cleanup of the building.

The project is expected to begin in early November and should lastabout four months.

ASBESTOS UPDATE: Overalls Linked to Wife's Asbestos Death---------------------------------------------------------Russ Lawrence, writing for Enfield Gazette & Advertiser, reportedthat former workers of a now-demolished power station are beingsought by lawyers seeking to launch a potential compensation claimover the asbestos-related death of the wife of an ex-employee.Lilian Ridley died in September aged 86 from mesothelioma. A post-mortem examination revealed that the cancer was caused by herexposure to deadly asbestos dust from washing the overalls of herlate husband, Frank.

He worked as a boiler house engineer at the coal-fired Brimsdownpower station on the Lee Navigation Canal from 1958 until it wasdecommissioned in 1974.

The present day gas-fired Enfield power station, built in 1999,stands on part of the original site. Mr Ridley's job at theBrimsdown power station involved using asbestos to lag pipes.After it was shut he worked in east London -- at West Ham powerstation, in Canning Town, and at Brunswick Wharf power station,near Blackwall -- until he retired in 1983.

He died of cancer in 2011. His death was not linked to asbestos.Mesothelioma is associated with exposure to the hazardousmaterial. Lawyers acting for the family are now seeking to traceformer work colleagues of Mr Ridley. Andrew James, industrialdisease specialist at law firm Hodge Jones and Allen, said thatMrs Ridley had been having problems with breathlessness, findingit increasingly difficult to walk.

"When she went to her doctor, the outcome was devastating," hesaid.

"She was diagnosed with mesothelioma in July this year."The disease can be very fast-acting and Lilian died less than twomonths later on September 9, 2016."

Before her death, Mrs Ridley had instructed lawyers to investigatehow her late husband had been exposed to asbestos dust and to findout if more could have been done by his former employers toprotect him from the lethal substance.

He worked for the British Electricity Authority, which became theCentral Electricity Authority and then the Central ElectricityGenerating Board.

Mr James added: "Cases involving wives or daughters who washedworkers' clothing are becoming increasingly more common."Lilian died because her late husband's employer exposed him toasbestos at work and failed to protect him and his family fromthis deadly dust.

"Clearly, this should not have happened.

"The dangers of asbestos were well-known to Mr Ridley's employersduring the years of his employment.

"The courts have previously held that employers should have beenaware of the dangers to family members caused by workers bringinghome asbestos dust on clothing since 1965 at the earliest." MrsRidley's family has asked anyone who has information that may helpto contact Mr James on 020 7874 8458 or by email at ajames@hja.net

ASBESTOS UPDATE: Asbestos Litigation Continues to Decline---------------------------------------------------------Karen Kidd, writing for SE Texas Record, reported that the amountof asbestos litigation in the U.S. continues to decrease, ifslightly, according to a mid-year 2016 report recently issued by aWashington-based consulting firm.

"To date, 2016 appears to be tracking closely with 2015 in termsof total claims filed," Jonathan Terrell, President and Founder ofKCIC, consulting firm providing corporate risk management servicesto policyholders and their legal counsel, said during a SE TexasRecord email interview. "Compared to this point last year, 2016filings are down only slightly."

Terrell cited the results of the recently released KCIC report,"Asbestos Litigation: 2016 Mid-Year Review". "We decided to do amid-year check-up, reviewing and analyzing the first six months ofdata for 2016, as received through July 31 relative to the firstsix months of 2015," Terrell said. "A compare and contrast fromyear to year, if you will."

In addition to the slight decline in asbestos-related litigation,the report shows a comparative decrease in all disease-relatedclaims filed except for that of asbestos-caused mesothelioma,which is up 10.7 percent compared to the same period last year."Madison County, Ill., continues to be the epicenter for asbestosfilings, making up 29 percent of total filings and 48 percent oftotal mesothelioma filings for 2016 thus far," Terrell said. "Likelast year, we are seeing the same few plaintiffs' counsel filingthe most lawsuits."

The paucity of plaintiff's attorneys mentioned in the midyearreport is similar to what was found in the previously releasedKCIC report, "Asbestos Litigation: 2015 Mid-Year Review".Asbestos-related litigation long has attracted bottom-feeders inthe legal community who often place open-ended advertisements torecruit prospective asbestos litigators, industry observers say.

One West Virginia firm blames almost 300 companies in itsasbestos-related litigation while one firm in Madison County,Ill., files the most such cases in that county and nationwide.

Even in Texas, where laws tend to be stacked against plaintiffs,asbestos-related cases are not unheard of, though the state itselfdoes not figure large in the most recent report. One case filed inJuly names 49 corporate defendants while another case filed thesame month names dozens more.

The low number of plaintiffs' attorneys in all these casescontinues in the midyear report, Terrell said. "The reportprovides a fairly holistic state of the industry snapshot, andwhen we look at the numbers from last year to this year we'reseeing some trends," he said. "As noted, we're still seeing thesame main plaintiff counsel players filing the vast majority oflawsuits in the same places. The top 15 plaintiff counsel firmsfiled 70 percent of all filings in 2016 to date."

The report also noted trends in the top 15 jurisdiction, which arein order Madison County, Ill.; New York; Baltimore; Philadelphia;Wayne, Mich.; New Castle, Del.; Cook County, Ill.; Los Angeles;Kanawha County, W.Va. Allegheny, Pa.; Middlesex, N.J.; St. Claire,Ill.; Orleans Parish, La. and Alameda, Calif.

"The top 15 jurisdictions account for 81 percent of the asbestosfilings thus far," Terrell said. "We expect this concentration tocontinue, though we do continue to look for and monitor otherjurisdictions that experience upticks in filings as well."

KCIC plans to publish a more comprehensive full-year 2016 analysisearly next year.

ASBESTOS UPDATE: College Closed After Asbestos Found in Roof------------------------------------------------------------Stuff.co.nz reported that St Patrick's College in Kilbirnie willbe closed for the rest of the week after asbestos fibres werefound in its roofs.

Preliminary results, received late on Tuesday, revealed isolatedareas of fibres in dust swabs.

Air sampling confirmed the finds were well within health andsafety standards.

St Patrick's College rector Neal Swindells is hopeful theKilbirnie school will reopen on Monday.

But college rector Neal Swindells said it was decided to close theschool to "enable further testing, isolate affected areas andformulate a detailed management plan".

In a written statement to parents and students, he said: "Theboard is utilising specialist advisers and is in consultation withthe Ministry of Education in making its decisions.

"Unless advised otherwise, we anticipate the college being open onMonday.

"We sincerely apologise for this interruption to our normalprogrammes and would encourage our students to use this timeproductively as we move towards end-of-year exams andassessments."

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